[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                      THE 15TH ANNIVERSARY OF THE
                       FAMILY MEDICAL LEAVE ACT:
                      ACHIEVEMENTS AND NEXT STEPS

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

             HEARING HELD IN WASHINGTON, DC, APRIL 10, 2008

                               __________

                           Serial No. 110-86

                               __________

      Printed for the use of the Committee on Education and Labor


                       Available on the Internet:
      http://www.gpoaccess.gov/congress/house/education/index.html


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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Senior Republican Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Ric Keller, Florida
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           John Kline, Minnesota
Danny K. Davis, Illinois             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Kenny Marchant, Texas
Timothy H. Bishop, New York          Tom Price, Georgia
Linda T. Sanchez, California         Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland           Charles W. Boustany, Jr., 
Joe Sestak, Pennsylvania                 Louisiana
David Loebsack, Iowa                 Virginia Foxx, North Carolina
Mazie Hirono, Hawaii                 John R. ``Randy'' Kuhl, Jr., New 
Jason Altmire, Pennsylvania              York
John A. Yarmuth, Kentucky            Rob Bishop, Utah
Phil Hare, Illinois                  David Davis, Tennessee
Yvette D. Clarke, New York           Timothy Walberg, Michigan
Joe Courtney, Connecticut            [Vacancy]
Carol Shea-Porter, New Hampshire

                     Mark Zuckerman, Staff Director
                   Vic Klatt, Minority Staff Director
                                 ------                                

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                LYNN C. WOOLSEY, California, Chairwoman

Donald M. Payne, New Jersey          Joe Wilson, South Carolina,
Timothy H. Bishop, New York            Ranking Minority Member
Carol Shea-Porter, New Hampshire     Tom Price, Georgia
Phil Hare, Illinois                  John Kline, Minnesota



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on April 10, 2008...................................     1

Statement of Members:
    Wilson, Hon. Joe, ranking minority member, Subcommittee on 
      Workforce Protections......................................     5
        Prepared statement of....................................     7
        Additional submissions:
            Federal Register, 29 CFR Part 825, Family and Medical 
              Leave Act Regulations: A Report on the Department 
              of Labor's Request for Information; Proposed Rule, 
              Internet address...................................    65
            DOL's proposed rules change in the FMLA, dated 
              February 11, 2008, Internet address................    65
            Statement of the National Business Group on Health...    69
            Statement of the National Coalition to Protect Family 
              Leave..............................................    72
            Statement of the Retail Industry Leaders Association.    75
            Letter, dated April 11, 2008, from the Society for 
              Human Resource Management to the Department of 
              Labor, Internet address............................    76
    Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce 
      Protections................................................     1
        Prepared statement of....................................     4
        Additional submissions:
            Letter from the American Association of University 
              Women, dated April 8, 2008.........................    66

Statement of Witnesses:
    Cossette, Brenda, human resources director, on behalf of the 
      Society for Human Resource Management......................    41
        Prepared statement of....................................    43
    Hunt, Jennifer, flight attendant.............................    36
        Prepared statement of....................................    38
    Lasco, Chante, new mother....................................    33
        Prepared statement of....................................    34
    Lipnic, Victoria, Assistant Secretary for Employment 
      Standards, U.S. Department of Labor........................     8
        Prepared statement of....................................     9
    Ness, Debra, president, National Partnership for Women and 
      Families...................................................    46
        Prepared statement of....................................    49
    Schroeder, Hon. Patricia S., president & chief executive 
      officer, Association of American Publishers, former Member 
      of Congress................................................    30
        Prepared statement of....................................    32


                      THE 15TH ANNIVERSARY OF THE
                       FAMILY MEDICAL LEAVE ACT:
                      ACHIEVEMENTS AND NEXT STEPS

                              ----------                              


                        Thursday, April 10, 2008

                     U.S. House of Representatives

                 Subcommittee on Workforce Protections

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:01 a.m., in 
Room 2175, Rayburn House Office Building, Hon. Lynn Woolsey 
[chairwoman of the subcommittee] presiding.
    Present: Representatives Woolsey, Payne, Bishop, Shea-
Porter, Hare, McKeon, Wilson, and Kline.
    Staff present: Aaron Albright, Press Secretary; Tylease 
Alli, Hearing Clerk; Jody Calemine, Labor Policy Deputy 
Director; Lynn Dondis, Senior Policy Advisor for Subcommittee 
on Workforce Protections; Danielle Lee, Press/Outreach 
Assistant; Sara Lonardo, Junior Legislative Associate, Labor; 
Joe Novotny, Chief Clerk; Michele Varnhagen, Labor Policy 
Director; Mark Zuckerman, Staff Director; Cameron Coursen, 
Minority Assistant Communications Director; Ed Gilroy, Minority 
Director of Workforce Policy; Rob Gregg, Minority Senior 
Legislative Assistant; Alexa Marrero, Minority Communications 
Director; Jim Paretti, Minority Workforce Policy Counsel; Molly 
McLaughlin Salmi, Minority Deputy Director of Workforce Policy; 
Hannah Snoke, Minority Legislative Assistant; and Linda 
Stevens, Minority Chief Clerk/Assistant to the General Counsel.
    Chairwoman Woolsey [presiding]. A quorum is present. The 
hearing of the Workforce Protection Subcommittee on the 15th 
anniversary of the Family and Medical Leave Act achievements 
and next steps will come to order.
    Pursuant to Committee Rule 12(a), any member may submit an 
opening statement in writing, which will be made part of the 
permanent record.
    And I now recognize myself, followed by Ranking Member Joe 
Wilson, for opening statements.
    I want to thank everybody for coming today and attending 
this hearing on the 15th anniversary of the Family and Medical 
Leave Act that we will call FMLA. This legislation establishes 
a minimum labor protection to help working people balance their 
work and their family lives.
    FMLA had been in the works for many years and had been 
before it was passed, and I am delighted that Representative 
Pat Schroeder, the mother of FMLA, is able to be here today to 
testify before us.
    Welcome, Pat.
    There is no question, Representative Schroeder, that you 
worked tirelessly on this benefit for working families, so we 
all know that your testimony is going to bring us up to date of 
where we have been and where we have yet to go.
    The USA should be a leader in the world on these matters, 
our United States of America. Funny, we are not quite, we are 
not close, but we have a lot of work to do. But, at the current 
time, because we lag far behind other countries in providing 
family-friendly policies, such as paid leave, to our workers, 
we need to catch up, and we need to catch up fast.
    However, in the 15 years since FMLA was passed, there has 
been some good news. Millions of workers have been able to 
utilize leave to care for the birth or adoption of a child--I 
hear that one over there--or to care for a sick child, or a 
sick parent, or to care for their own serious medical 
condition. Chante Lasco will testify today about her leave, why 
it was good, and how it could have been better. There are also 
many good employers, although not nearly enough, in this 
country who realize that family-friendly policies actually 
help, not hurt, their bottom lines.
    And just this year, on a bipartisan basis, we passed the 
first-ever expansion of FMLA, and I am really proud to say that 
the expansion is the result of legislation introduced by 
Senator Clinton and Senator Dodd and myself to provide 
additional leave for workers to care for seriously injured 
service members. The genesis of this legislation was the 
Wounded Warriors Commission chaired by Secretary Donna Shalala 
and Senator Bob Dole.
    The Commission recommended an expansion to FMLA because it 
understood that workers with family members in the military 
face additional challenges due to the conflicts in Iraq and 
Afghanistan, which have resulted--and we know that--in over 
4,000 deaths and more than 30,000 injuries, with many service 
members being seriously, seriously injured--mentally and 
physically.
    The new expansion provides these workers job-protected 
leave for up to 6 months so they can care for their wounded 
family member who have, as we know, sacrificed so much for this 
country of ours. This is important because, for the first time, 
family members other than the spouse, parent, or child can take 
off leave under the Family and Medical Leave Act.
    In addition, the law also incorporates an important 
provision authored by Representatives Altmire and Tom Udall 
from the House that extends the 12 weeks of leave to families 
of service members who are deployed overseas for matters 
arising from their deployment.
    Many members of the House and Senate are submitting 
comments to the Department of Labor on how to implement this 
expansion to FMLA.
    Assistant Secretary Lipnic is here today, and I have to 
welcome you back because--Secretary Lipnic actually was a staff 
person working for Leader John Boehner when he was the Chair of 
this committee, and this is her first time being on that side 
of the table. So we will be kind of nice to you. And I am sure 
Joe really will. And we all will because this is a really nice 
committee. But we welcome you. [Laughter.]
    But, at the same time, we hope that you and the department 
will heed our suggestions to interpret the law in the broadest 
possible way so that it can be administered as intended 
because, although we are pleased to be expanding the military 
families' leave, work on behalf of all working families is far, 
far from completed.
    More employers need to step up to the plate, and we need to 
enact other workforce protections that establish our country as 
a leader in this arena. This includes passing legislation 
providing for paid sick days, paid leave, equal pay for women, 
and other necessary benefits for working families, so they can 
bridge work and family, not have to choose where their 
allegiance is, at home or at work. They need not to make that 
choice, they need to be in both places, and we need to help 
them.
    That is why I have introduced the Balancing Act, which puts 
into place a whole host of family-friendly policies, such as 
paid family medical leave, benefits for part-time workers, and 
additional leave for parental involvement activities, including 
attending to routine medical matters.
    Senator Kennedy and Representative DeLauro have introduced 
the Healthy Families Act, which will provide workers with 7 
days of paid sick leave to care for their own medical needs or 
the needs of a family member.
    That is why Representative Bishop, a valued member of this 
subcommittee, along with Senator Clinton, has introduced H.R. 
2744, The Airline Flight Crew Technical Corrections Act, which 
amends FMLA to make flight attendants and crew members eligible 
for FMLA if they have worked 60 percent of the employer's 
monthly hour or trip guarantee.
    I am pleased that Jennifer Hunt, a flight attendant, is 
here to testify in that regard today. By telling her story, she 
will show us that it is very important to provide job-protected 
leave to others in her same position.
    Lastly, let me say just a few words about the Department of 
Labor's proposed regulations to the FMLA. I was disappointed 
that without scientifically sound data, the department is 
proposing changes that will make it somewhat harder, if not a 
lot harder, on the workers and make it harder for them to 
utilize FMLA leave.
    I was a human resources manager--and I will remind you of 
that throughout this hearing--for nearly 2 decades, and I know 
all about the issues that come up when workers need time off 
from work to care for family matters.
    Over those years, it became very clear to me and the 
employers I worked for that it was important to help workers 
with these issues because we knew that when a worker's family 
life was in order, he or she was a much more committed, loyal, 
and focused employee.
    So it was in the best interest of my companies, the ones I 
worked for, to give workers the leave that they needed, and 
these proposed regulations are a bit disturbing to me because 
they shift that balance more in favor of the employer than it 
was in the past.
    So, unlike the Fair Labor Standards Act, from which the 
FMLA was modeled, these proposed changes will allow a worker to 
waive his or her rights under FMLA without the supervision of a 
court or the Department of Labor, and they will create more 
hoops for the worker to jump through in order to utilize a 
right to leave that is already enshrined in law.
    Notice will have to be immediate and contain detailed 
information about the need for leave and, under the proposed 
rules, an employer--and not the employer's doctor--could talk 
directly to the health care provider about the worker's medical 
condition or the worker could be denied leave.
    So these are just a few of the problems with the proposed 
rules. I, and other members, look forward to hearing from 
Assistant Secretary Lipnic on why the delicate balance that we 
have been able to achieve for 15 years needs to be upset at 
this particular time, when really what we need to do is be 
expanding FMLA and making it more positive for the workers.
    We are looking for fairness, we are not looking for 
obstacles for workers, and we are here today to talk about 
that, and I am looking forward to hearing from all of you and 
to have the discussion that we need to have in this regard.
    And now I yield to Ranking Member Joe Wilson.
    [The statement of Ms. Woolsey follows:]

Prepared Statement of Hon. Lynn C. Woolsey, Chairwoman, Subcommittee on 
                         Workforce Protections

    I want to thank everyone for attending this hearing on 15th 
anniversary of the Family and Medical
    Leave Act, legislation that establishes a minimum labor protection 
to help working people balance their work and family lives. FMLA had 
been in the works for many years before it was passed, and I am so 
delighted that
    Representative Pat Schroeder, the ``mother'' of the FMLA, is able 
to be here to testify today. Welcome, Representative Schroeder. You 
worked tirelessly to pass this benefit for working families. And, as 
such, you and others testifying here today know how far we have come, 
and yet how far we have to go. The U.S.A. should be a leader in the 
world on these matters. But, at the current time, we lag far behind 
other countries in providing ``family-friendly policies'', such as paid 
leave, to our workers. We need to catch up, and catch up fast. However, 
in the 15 years since FMLA was passed, there has been good news! 
Millions of workers have been able to utilize leave to care for the 
birth or adoption of a child, to care for a sick child or parent, or to 
care for their own serious medical condition. Chante Lasco will testify 
about her leave, why it was good and how it could have been better. 
There are also many good employers -although not nearly enough -in this 
country who realize that ``family-friendly policies'' actually help, 
not hurt their bottom line.
    I am proud to say that the expansion is the result of legislation 
introduced by Senators Clinton and Dodd and myself to provide 
additional leave for workers to care for seriously injured 
servicemembers.
    The genesis of this legislation was the Wounded Warriors Commission 
chaired by Secretary Donna Shalala and Senator Bob Dole.
    The Commission recommended an expansion to FMLA because it 
understood that workers with family members in the military face 
additional challenges due to the conflicts in Iraq and Afghanistan, 
which have resulted in over 4,000 deaths and more than 30,000 injuries, 
with many servicemembers being seriously injured.
    The new expansion provides these workers job-protected leave for up 
to 6 months so they can care for the servicemembers who have sacrificed 
so much for this country. This is important because, for the first, 
family members other than the spouse, parent, or child can take off 
leave under the FMLA.
    In addition, the law also incorporates an important provision 
authored by Representatives Altmire and Tom Udall that extends the 12 
weeks of leave to families of servicemembers who are deployed overseas 
for matters arising from the deployment.
    Many members of the House and Senate are submitting comments to the 
Department of Labor on how to implement this expansion to the FMLA.
    Assistant Secretary Lipnic, I appreciate your coming today, and I 
hope that the Department will heed our suggestions to interpret the law 
in the broadest possible way so it can be administered as we intended.
    We are pleased that we were able to expand leave for military 
families, but of course our work on behalf of all working families is 
far from done.
    More employers need to step up to the plate, and we need to enact 
other workforce protections that establish our country as a leader in 
this arena.
    This includes passing legislation providing for paid sick days, 
paid leave, equal pay for women and other necessary benefits for 
working families, so they can bridge work and family.
    That is why I have introduced the Balancing Act, which puts into 
place a whole host of ``familyfriendly'' policies, such as paid family 
medical leave, benefits for part-time workers, and additional leave for 
parental involvement activities, including attending to routine medical 
matters.
    Senator Kennedy and Representative DeLauro have introduced the 
Healthy Families Act, which will provide workers with 7 days of paid 
sick leave to care for their own medical needs or the needs of a family 
member.
    And that is why Representative Bishop, a valued member of our 
Subcommittee, along with Senator Clinton, has introduced H.R. 2744, The 
Airline Flight Crew Technical Corrections Act, which amends FMLA to 
make flight attendants or crew members eligible for FMLA if they have 
worked 60% of the employer's monthly hour or trip guarantee.
    I am pleased that Jennifer Hunt, a flight attendant, is testifying 
today.
    By telling her story, she will show us that it is very important to 
provide job-protected leave to others in her same position.
    Lastly, let me just say a few words about the Department of Labor's 
proposed regulations to the FMLA.
    I was very disappointed that without scientifically sound data, the 
Department is proposing changes that will make it harder not easier for 
workers to utilize FMLA leave.
    I was a human resource manager for nearly 2 decades, and I know all 
about the issues that come up when workers need time off from work to 
take care of family matters.
    I found that it was important to help workers with these issues 
because I knew that when a worker's family life was in order, he or she 
was a better and more committed employee.
    So it was in the best interest of my Company to give workers the 
leave they needed.
    The proposed regulations disturb me precisely because they shift 
that balance in favor of the employer.
    Unlike the Fair Labor Standards Act, from which the FMLA was 
modeled, these proposed changes will allow a worker to waive his or her 
rights under the FMLA leave without the supervision of a court or the 
Department of Labor.
    And they will create more hoops for the worker to jump through in 
order to utilize a right to leave that is already enshrined in law.
    Notice will have to be immediate and contain detailed information 
about the need for leave.
    And under the proposed rules, an employer -and not the employer's 
doctor -could talk directly to the health care provider about the 
worker's medical condition or the worker could be denied leave.
    These are just a few of the problems with the proposed rules, and I 
and other members look forward to hearing from Assistant Secretary 
Lipnic on why the delicate balance that we have been able to achieve 
for 15 years needs to be upset at this particular time.
    This is not fairness, just another obstacle to a worker being able 
to assert his or her right.
                                 ______
                                 
    Mr. Wilson. Thank you, Madam Chairwoman.
    And we are all delighted to have you return from your back 
surgery.
    Chairwoman Woolsey. Thank you.
    Mr. Wilson. We all wish you a speedy and complete recovery.
    Chairwoman Woolsey. Thank you.
    Mr. Wilson. I, too, would like to extend a warm welcome to 
our witnesses, particularly to the employees who will appear on 
the second panel. I look forward to hearing their testimony.
    Medical leave has special meaning to me today. As I was 
arriving, I received a phone call from my oldest son, Alan. He 
is taking his wife, Jennifer Miskewicz Wilson, on the way to 
Lexington Medical Center, as we speak, for the delivery of 
their first son, Michael McCrory Wilson, and so this is an 
exciting time for our family.
    My daughter-in-law, Jennifer Miskewicz Wilson, is much 
better known in the community than I am. She is a newscaster at 
the largest television station in South Carolina, a very 
humbling experience, and I do note that the company she works 
for has been very family friendly, following the law but even 
more. So it is an exciting day as we discuss this issue.
    As you noted, Madam Chair, this past February marked the 
15-year anniversary of the Family and Medical Leave Act, 
legislation that has made a significant difference in the lives 
of millions of working Americans. The FMLA has provided 
countless numbers of workers and their families with job 
security and some peace of mind during critical times.
    Americans have used family and medical leave to care for 
the arrival of a newborn or adopted child or to tend to a 
parent's or child's serious illness. Still others, who have 
struggled with health problems or those of family members, have 
been able to tend to critical medical needs while holding on to 
their jobs, benefits, and some measure of economic security.
    In fact, many employers go far beyond the requirements of 
the law, to ensure their employees have benefits above and 
beyond what is required under federal or state law.
    It is my impression we will certainly hear firsthand from 
our witnesses that the law is working in the vast majority of 
cases the way Congress intended for it to work. But as those of 
us who serve in Congress know, things do not always end up 
working the way they were meant to work. Even with the best of 
intentions, there can be unintended consequences and problems 
that were not fully anticipated.
    Despite the fact that the law has worked well for millions 
of workers, the FMLA is not without controversy among the 
employer community, worker advocates, and within the courts. It 
is well documented that certain provisions of the FMLA have 
created ambiguity and confusion over the years, benefitting 
neither workers nor their employers. In that regard, I would 
suggest that the administration has taken a step forward, not 
backward as some have claimed, to update the regulations to 
reflect and account for court rulings and statutory and 
regulatory developments that have impacted the functioning of 
the FMLA.
    In particular, I would like to commend the Department of 
Labor for moving expeditiously on regulations to implement the 
newly enacted military family leave. Military families of 
military service members will now have one less burden, thanks 
to the first-ever expansion of FMLA, signed into law by 
President Bush in January of this year.
    As a 31-year veteran of the Army National Guard and the 
proud father of four sons who are currently serving in the 
military--two have served in Iraq--I am sensitive to the daily 
challenges faced by our military families. Indeed, no one in 
this room could find a more worthy goal than ensuring workers 
are not forced to choose between their job and caring for an 
injured family member who has served his or her country.
    As part of its package of proposed rules, the department 
has asked for public comments on issues related to the new 
military leave provisions. With respect to the military leave 
provisions that took effect upon enactment in January, I would 
note the department has moved quickly to issue guidance to 
employees and employers regarding their rights and obligations. 
We welcome their efforts.
    With that, I look forward to hearing the testimony from our 
witnesses and yield back the balance of my time.
    [The statement of Mr. Wilson follows:]

   Prepared Statement of Hon. Joe Wilson, Ranking Republican Member, 
                 Subcommittee on Workforce Protections

    Thank you, Madam Chairwoman. I too would like to extend a warm 
welcome to our witnesses, particularly to the employees who will appear 
on the second panel. I look forward to hearing their testimony.
    As you noted, Madam Chair, this past February marked the fifteen-
year anniversary of the Family and Medical Leave Act, legislation that 
has made a significant difference in the lives of millions of working 
Americans. The FMLA has provided countless numbers of workers and their 
families with job security and some peace of mind during critical 
times.
    Americans have used family and medical leave to care for the 
arrival of a newborn or adopted child, or to tend to a parent or 
child's serious illness. Still others, who have struggled with health 
problems or those of family members, have been able to tend to critical 
medical needs while holding on to their jobs, benefits and some measure 
of economic security. In fact, many employers go far beyond the 
requirements of the law, to ensure that their employees have benefits 
above and beyond what is required under federal or state law.
    It's my impression, and we will certainly hear firsthand from our 
witnesses, that the law is working in the vast majority of cases, the 
way Congress intended for it to work. But as those of us who serve--or 
have served--in Congress know, things don't always end up working the 
way they were meant to work. Even with the best of intentions, there 
can be unintended consequences and problems that were not fully 
anticipated.
    Despite the fact that the law has worked well for millions of 
workers, the FMLA is not without controversy among the employer 
community, worker advocates, and within the courts. It is well-
documented that certain provisions in the FMLA have created ambiguity 
and confusion over the years, benefitting neither workers nor their 
employers. In that regard, I would suggest that the Administration has 
taken a step forward--not backward as some have claimed--to update the 
regulations to reflect and account for court rulings and statutory and 
regulatory developments that have impacted the functioning of the FMLA.
    In particular, I would like to commend the Department of Labor for 
moving expeditiously on regulations to implement the recently-enacted 
military family leave. Working families of military servicemembers will 
now have one less burden, thanks to the first-ever expansion of the 
FMLA, signed into law by President Bush in January of this year.
    As a 31 year veteran of the Army National Guard and the proud 
father of four sons currently serving in the military, I am sensitive 
to the daily challenges faced by military families. Indeed no one in 
this room could find a more worthy goal than ensuring workers are not 
forced to choose between their job and caring for an injured family 
member who has served his or her country.
    As part of its package of proposed rules, the Department has asked 
for public comments on issues related to the new military leave 
provisions. With respect to the military leave provisions that took 
effect upon enactment in January, I would note the Department has moved 
quickly to issue guidance to employees and employers regarding their 
rights and obligations. We welcome their efforts.
    With that, I look forward to hearing the testimony from our 
witnesses and yield back the balance of my time.
                                 ______
                                 
    Chairwoman Woolsey. Thank you, Mr. Wilson.
    First of all, I would like to congratulate you on the 
upcoming birth of a new Scots kid.
    Mr. Wilson. Scots-Polish.
    Chairwoman Woolsey. Well, all right, but another Wilson can 
only be positive for your district and for this country. So 
congratulations to you.
    For those of you who have not testified before us before, 
let me explain the lighting system. We have a 5-minute rule. 
Everyone, including members, is limited to 5 minutes of 
presentation and/or questioning. The green light is illuminated 
when you begin to speak. When you see the yellow light, it 
means you have 1 minute remaining. When you see the red light, 
it means your time has expired, and you need to conclude your 
testimony. We do not cut people off mid-sentence. You can be 
sure of that.
    And now we will be proud to hear from our first witness, 
Assistant Secretary Victoria Lipnic. Assistant Secretary Lipnic 
is the Assistant Secretary of Labor for employment standards 
and has served in that position since the year 2002.
    Prior to her appointment, she served as workforce policy 
counsel for this committee from the year 2000 to 2002. Before 
that, she was in-house counsel to the U.S. Postal Service, 
serving in that role from 1994 to 2000. From 1988 to 1989, 
Assistant Secretary Lipnic was a special assistant to the 
Assistant Secretary for Trade Development at the International 
Trade Administration, and from 1984 to 1988, she served on the 
U.S. Secretary of Commerce's staff. Assistant Secretary Lipnic 
earned her BA in political science and history from Allegheny 
College in Pennsylvania and her JD from George Mason University 
School of Law.
    Welcome, Assistant Secretary Lipnic, and, as I said, be 
comfortable on that side of the table because we are good 
people up here.

     STATEMENT OF VICTORIA LIPNIC, ASSISTANT SECRETARY FOR 
         EMPLOYMENT STANDARDS, U.S. DEPARTMENT OF LABOR

    Ms. Lipnic. Thank you very much, Madam Chairwoman. Good 
morning. And I am so pleased to know that alumni status has its 
privileges with the committee.
    Chairwoman Woolsey, Ranking Member Wilson, members of the 
committee, thank you for inviting me here today to testify 
about the Department of Labor's 15 years of experience in 
administering the Family and Medical Leave Act and to discuss 
the department's proposals issued earlier this year in February 
to revise the regulations under the FMLA. It is a pleasure to 
be with you.
    In the time allotted, I thought I would summarize my 
testimony, and then I am happy to take your questions, and I 
would ask to have my full written testimony included in the 
record.
    Chairwoman Woolsey. Without objection.
    [The statement of Ms. Lipnic follows:]

    Prepared Statement of Victoria Lipnic, Assistant Secretary for 
             Employment Standards, U.S. Department of Labor

    Good morning, Chairwoman Woolsey, Ranking Member Wilson, and 
Members of the Subcommittee. I am pleased to testify today about the 
Department of Labor's experiences in administering the Family and 
Medical Leave Act of 1993 (FMLA) and our recently published Notice of 
Proposed Rulemaking (NPRM). The FMLA provides America's working 
families with the ability to take job-protected leave for the birth or 
adoption of a child, because of one's own, or a family member's, 
serious health condition, and, only recently--in the case of military 
families--to care for our wounded warriors and to address qualifying 
exigencies arising from deployment. The recent expansion of the law to 
provide military family leave, along with the experience gained from 
fifteen years of enforcing the rights of workers to take job-protected 
leave and case law developments during this time, requires that the 
Department update its regulations to ensure the FMLA continues to work 
as well as possible.
    When, on January 28, 2008, President Bush signed a bill to provide 
additional leave entitlements to military families, the Department 
fast-tracked publication of a proposal to implement these important new 
leave entitlements. The Department published its proposal in the 
Federal Register on February 11, 2008. A copy of the proposal is 
available at www.dol.gov/esa/whd and at www.regulations.gov.
    The Department takes its commitment to servicemembers and their 
families very seriously, and because one of the provisions providing 
additional FMLA leave protection for military families cannot go into 
effect until the Secretary of Labor defines certain terms by 
regulation, we believe it is important to address those provisions 
completely and expeditiously. We have already reached out to the 
Departments of Defense and Veterans Affairs, as well as groups 
representing servicemembers and their families, to obtain their input. 
Our proposal will allow us to finalize these regulations as quickly as 
possible, thus ensuring that military servicemembers and their families 
receive the full protection of the FMLA when they need it most.
    The Department's proposal is also another step in what has been an 
open and transparent process of reviewing the current FMLA regulations. 
Although there is broad consensus that the FMLA is valuable for workers 
and their families, there are a number of issues that workers, 
employers, and health care professionals have identified as needing to 
be updated in order to make the law work better for everyone. This 
should be expected as it has been almost 15 years since the 
Department's first interim final rule implementing the FMLA went into 
effect. Much has happened since then--numerous court rulings examining 
the Act and implementing regulations, and statutory and regulatory 
developments, such as passage of the Health Insurance Portability and 
Accountability Act (HIPAA) that directly or indirectly impact 
administration of the FMLA.
Background
    By way of background, the FMLA generally covers employers with 50 
or more employees. Employees must have worked for the employer for 12 
months and have 1,250 hours of service during the previous year to be 
eligible for leave. As enacted in 1993, the FMLA permits eligible 
employees to take up to a total of 12 weeks of unpaid leave during a 
12-month period for: (1) the birth of a son or daughter and to care for 
the newborn child; (2) placement with the employee of a son or daughter 
for adoption or foster care; (3) care for a spouse, parent, son or 
daughter with a serious health condition; and (4) a serious health 
condition that makes the employee unable to perform the functions of 
the employee's job. Recent amendments provide for taking FMLA leave to 
care for a covered servicemember with a serious injury or illness 
incurred in the line of duty and because of qualifying exigencies 
arising out of a servicemember's active duty or call to active duty 
status.
    Employees may take FMLA leave in a block or, under certain 
circumstances, intermittently or on a reduced leave schedule. While the 
employee is on leave, the employer must maintain any preexisting group 
health coverage and, once the leave is over, reinstate the employee to 
the same or an equivalent job with equivalent employment benefits, pay, 
and other terms and conditions of employment. An employee who believes 
that his or her FMLA rights were violated may file a complaint with the 
Department or file a private lawsuit in federal or state court. If a 
violation is found, the employee may be entitled to reimbursement for 
monetary loss incurred, equitable relief as appropriate, interest, 
attorneys' fees, expert witness fees, court costs, and liquidated 
damages.
    To implement the FMLA, the Department initially issued an interim 
final regulation that became effective on August 5, 1993. Except for 
minor technical corrections in February and March 1995, the 
Department's FMLA regulations have not been updated since final 
regulations were published on January 6, 1995. Over the last several 
years, the Department has engaged in a thorough and deliberative review 
of the current FMLA regulations, taking into account both the 
Department's experience in administering and enforcing the FMLA and 
developing case law.
    The Department hosted a series of stakeholder meetings in late 2003 
and 2004. In December 2006, the Department issued a Request for 
Information (RFI) seeking comment on the public's experiences with the 
FMLA and the Department's regulations. In response to the RFI, the 
Department received more than 15,000 comments from workers, family 
members, employers, academics, and other interested parties. Many of 
the comments were brief emails with very personal accounts from 
employees who had used family or medical leave; others were highly 
detailed and substantive legal or economic analyses responding to the 
specific questions in the RFI and raising other complex issues.
    After reviewing all the public comments in response to the RFI, the 
Department published a report in June 2007.\1\ The RFI Report concluded 
that the FMLA is generally working well in the majority of cases. The 
FMLA has succeeded in allowing working parents to take leave for the 
birth or adoption of a child, and in allowing employees to be absent 
for blocks of time while they recover from their own serious health 
condition or care for family members recovering from serious health 
conditions. The FMLA also seems to be working fairly well when 
employees are absent for scheduled treatments related to their own or a 
family member's serious health condition.
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    \1\ A copy of the RFI Report, as well as access to the public 
comments and RFI, are available at http://www.dol.gov/esa/whd/
Fmla2007Report.htm and at www.regulations.gov.
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    However, the Department also learned that the FMLA, like any new 
law, has had some unexpected consequences. While employees often 
expressed a desire for greater leave entitlements, employers often 
expressed frustration about difficulties in maintaining necessary 
staffing levels and managing attendance in their workplaces, 
particularly when employees take leave on an unscheduled basis with no 
advance notice. For example, the RFI Report indicated that time-
sensitive industries, such as transportation operations (including 
local school bus systems), public health and safety operations 
(including hospitals, nursing homes, and emergency 911 services), and 
assembly-line manufacturers may be especially impacted by employees 
taking unscheduled, intermittent FMLA leave. Although taking FMLA leave 
intermittently is a statutory right, there is clear evidence that the 
use of intermittent leave disproportionately affects these types of 
industries.
    The Department also learned from the RFI and a subsequent 
stakeholder meeting held in September 2007 with employee, employer, and 
health care representatives that the current medical certification 
process is not working as smoothly as all involved would like. 
Employers complained about receiving inadequate medical information 
from doctors, while employees and health care providers complained that 
the Department's certification process was confusing and time-
consuming. It also appears that, despite much work by the Department, 
many employees still do not fully understand their rights under the Act 
or the procedures they must use when seeking FMLA leave.
    These aspects of FMLA can have ripple effects that result in 
conflicts and misunderstandings between employees and employers 
regarding leave designation and protection. Without action to bring 
clarity and predictability for FMLA leave-takers and their employers, 
the Department foresees employers and employees taking more adversarial 
approaches to leave, with the workers who have a legitimate need for 
FMLA leave being hurt the most.
    Based on 2005 data--the latest year for which data is available--
the Department estimates that 95.8 million employees work in 
establishments covered by the FMLA, and about 77.1 million of these 
workers meet the FMLA's requirements for eligibility. Of these eligible 
workers, the Department estimates that approximately 7.0 million 
workers took FMLA leave in 2005, and about 1.7 million of those leave 
takers took some FMLA leave intermittently. About half the workers who 
take FMLA leave do so for their own medical condition and the rest take 
it for family reasons. Most workers taking FMLA leave receive some pay 
during their longest period of leave, and many receive full pay during 
the period they are on leave.
    Although there are areas where the Department believes more data 
would be useful (e.g., the number of workers who have medical 
certifications for chronic health conditions), the targeted updates in 
the proposed rule are well-supported by the available data and case law 
developments and reflect recommendations made by stakeholders who have 
day-to-day experience with the FMLA. This experience is from the 
perspective of both leave takers and employers who must manage the 
taking of leave. The Department also is fully aware that its proposal 
does not address all of the issues identified during its lengthy review 
of the FMLA. The Department believes that its proposal will allow the 
FMLA to function more smoothly for America's working families and their 
employers.
    Turning to the specifics of the proposed rule, I want to reiterate 
that there is no question that the FMLA has been a benefit to millions 
of American workers and their families. The peace of mind that the FMLA 
brings to workers and their families as they face important and often 
stressful situations is invaluable. The Department's proposed 
rulemaking reflects this need. It has four main goals:
     To address the recently enacted military family leave 
provisions;
     To update the regulations to comport with current case 
law;
     To foster smoother communications among employees, 
employers, and health care professionals; and
     To update and clarify specific, problematic areas of the 
current FMLA regulations without limiting employee access to FMLA 
leave.
Regulatory Proposals to Implement the Military Family Leave Provisions
    Section 585(a) of the National Defense Authorization Act for FY 
2008 amended the FMLA to provide leave to eligible employees of covered 
employers to care for covered servicemembers and because of any 
qualifying exigency arising out of the fact that a covered family 
member is on active duty or has been notified of an impending call to 
active duty status in support of a contingency operation (collectively 
referred to herein as the military family leave provisions of P.L. 110-
181). Although the provisions of P.L. 110-181 providing FMLA leave to 
care for a covered servicemember became effective on January 28, 2008, 
when signed into law by President Bush, the provisions providing for 
FMLA leave due to a qualifying exigency arising out of a covered family 
member's active duty (or call to active duty) status are not effective, 
in our view, until the Secretary of Labor issues regulations defining 
``qualifying exigencies.''
    The Department's commitment to ensuring the FMLA works well for 
everyone, including for military family members, is clearly 
demonstrated by the Department publishing its proposed rulemaking to 
implement the new military family leave entitlements just 14 days after 
the provisions were signed into law. The Department's proposal includes 
an extensive discussion of the relevant military family leave statutory 
provisions and the issues the Department has identified, as well as a 
series of questions seeking comment on subjects and issues that may be 
considered in the final regulations. Even before P.L. 110-181 was 
enacted, the Department began preliminary consultations with the 
Departments of Defense and Veterans Affairs and the U.S. Office of 
Personnel Management. OPM will administer similar provisions regarding 
leave to care for a covered servicemember for most Federal employees, 
except that the recent amendments to the FMLA do not authorize leave 
for family members of Federal employees to respond to a qualifying 
exigency relating to a family member's call to active duty status. The 
Department also has met with the National Military Families Association 
and a number of other military service organizations representing 
active duty, guard, and reserve servicemembers to discuss their views 
on the new military leave entitlements. As we explained in the NPRM, 
the Department anticipates that the next step in the rulemaking 
process, after full consideration of the comments received, will be the 
issuance of final regulations. The Department believes that this 
approach will allow it to ensure that America's military families 
receive the full protections of these new FMLA leave entitlements as 
soon as possible.
    In the interim, the Department acted quickly to advise workers and 
employers of their rights and responsibilities under the new military 
family leave provisions. Because the statutory amendments did not 
provide an effective date, the day President Bush signed the National 
Defense Authorization Act of 2008 into law, the Department posted a 
notice on its website stating that the provisions in P.L 110-181 
providing for military caregiver leave were effective immediately. 
Further, because P.L 110-181 amended the FMLA, the notice instructed 
employers to use FMLA-type procedures as appropriate (i.e., procedures 
regarding the substitution of paid leave and notice), until final 
regulations could be issued. While recognizing that the provisions of 
P.L 110-181 providing for leave because of ``any qualifying exigency'' 
are not effective until final regulations are issued, the Department 
encouraged employers to provide this type of leave to qualifying 
employees immediately. Accordingly, thousands of military family 
members are currently eligible to take job-protected leave under the 
FMLA to care for a covered servicemember with a serious injury or 
illness, and others are being granted leave arising out of a family 
member's active duty status by their employers on a voluntary basis.
    Congress's decision to incorporate the new military family leave 
entitlements into the existing FMLA statutory scheme, rather than as a 
separate leave entitlement, necessitates that the Department consider 
changes to the FMLA regulations as a whole. Indeed, the language of the 
enacting legislation raises a number of difficult issues regarding how 
the new military family leave provisions should be interpreted in light 
of existing FMLA regulations. For example, statements by the sponsoring 
House Members of the amendment related to ``qualifying exigencies'' in 
P.L. 110-181 suggest that the intent of the amendment was that the 
parents of adult children be permitted to take FMLA leave, for 
instance, to attend farewell or welcome home ceremonies. However, 
applying the current FMLA definition of ``son or daughter''--which 
Congress did not change when implementing the military family leave 
provisions--would mean that the only parents who would be able to take 
FMLA leave because of a qualifying exigency would be those who have a 
son or daughter serving on active duty who is either under the age of 
18 or older than age 18 and incapable of self-care because of a mental 
or physical disability. Similarly, because Congress provided that 
military caregiver leave was available to the ``spouse, son, daughter, 
parent, or next of kin of a covered service member,'' the only sons or 
daughters who would be eligible to take FMLA leave to care for a 
seriously injured servicemember under the current FMLA regulatory 
framework would be those who are under the age of 18 or age 18 or older 
and incapable of selfcare because of a mental or physical disability.
    Other examples of the awkward interrelationship between the current 
FMLA regulations and the new military family leave provisions exist. 
For example, the military family leave provisions of P.L. 110-181 
amended FMLA's certification requirements to permit an employer to 
request that leave taken to care for a covered servicemember be 
supported by a medical certification. FMLA's certification 
requirements, however, focus on providing information related to a 
serious health condition--a term that is not relevant to leave taken to 
care for a covered servicemember. Moreover, Congress did not explicitly 
require in P.L. 110-181 that a sufficient certification for purposes of 
military caregiver leave provide information regarding whether the 
covered servicemember's serious injury or illness was incurred by the 
member in the line of duty while on active duty in the Armed Forces, or 
whether the serious injury or illness may render the member medically 
unfit to perform the duties of the member's office, grade, rank, or 
rating, even though those criteria trigger in part the right to take 
FMLA leave to care for a covered servicemember. Furthermore, the FMLA 
provides that an employer may request a medical certification issued by 
the health care provider of the employee's son, daughter, spouse, or 
parent in order to support a request for FMLA leave to care for a 
child, spouse, or parent with a serious health condition (29 U.S.C. 
2613). Although the leave entitlement provisions of P.L. 110-181 permit 
an eligible employee who is the next of kin of a covered servicemember 
to take military family leave, P.L. 110-181 certification requirements 
appear to permit an employer to obtain a certification issued by the 
health care provider of the employee's next of kin, rather than the 
covered servicemember.
    These are not easy questions to answer, and they present a number 
of drafting challenges to meet the needs of military families they were 
designed to address. The Department raised all of these issues in its 
NPRM on February 11, 2008 (73 FR 7876). Now that the record is about to 
close for the rulemaking, we look forward to the input we expect to 
receive from the regulated community and public as to how to make these 
new entitlements work within the underlying FMLA regulations as 
Congress intended (just as we received many thoughtful comments in 
response to our Request for Information). Given the difficult choices 
that must be made regarding how to interpret the military family leave 
statutory provisions, the Department believes that its approach 
provides the fastest mechanism for these new leave entitlements to be 
fully implemented. Addressing these important questions regarding the 
military family leave provisions along with other needed updates to the 
FMLA regulations will allow the Department to integrate fully the 
military family leave entitlements with the procedures employees and 
employers follow for requesting and granting other types of FMLA leave. 
This approach makes sense for both employees and employers, neither of 
whom would be served by having to follow completely different rules 
depending on the type of FMLA leave requested. Importantly, no military 
family can be denied caregiver leave during the rulemaking process as 
those provisions are already in effect.
Regulatory Proposals to Address Intervening Court Decisions
    Since the enactment of the FMLA, hundreds of reported federal cases 
have addressed the Act or the Department's implementing regulations. In 
many cases, these decisions have created uncertainty for employees and 
employers, particularly those with multi-state operations. The 
Department anticipates that our proposed rule will bring clarity to 
these issues and reduce uncertainty for all parties.
    The most significant of these decisions is the U.S. Supreme Court's 
decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002). 
Ragsdale ruled that the ``categorical'' penalty for failure to 
appropriately designate FMLA leave under the current regulations was 
inconsistent with the statutory entitlement to only 12 weeks of FMLA 
leave, and was contrary to the statute's remedial requirement to 
demonstrate individual harm. Several other courts have invalidated 
similar categorical penalty provisions of the current regulations. The 
proposed rule removes these categorical penalty provisions, while 
making clear that an employee who suffers individualized harm because 
of an employer's actions remains entitled to a remedy under the 
statute.
    The Department also is proposing changes to address a court of 
appeals ruling that the regulation that establishes standards for 
determining whether an employer employs 50 employees within 75 miles of 
an employee's worksite for purposes of FMLA coverage (the 50/75 
standard) was arbitrary and capricious as applied to an employee 
working at a secondary employer's long-term fixed worksite. See Harbert 
v. Healthcare Services Group, Inc., 391 F.3d 1140 (10th Cir. 2004). The 
current regulation provides that, when two or more employers jointly 
employ a worker, the employee's worksite is the primary employer's 
office from which the employee is assigned or reports. The Department 
proposes to change the standard for determining the worksite for FMLA 
coverage purposes in a joint employment situation from the primary 
employer's location in all cases to the actual physical place where the 
employee works, if the employee is stationed at a fixed worksite for at 
least a year.
    The Department also is proposing to address the possibility of 
combining nonconsecutive periods of employment to meet the 12 months of 
employment eligibility requirement. In Rucker v. Lee Holding, Co., 471 
F.3d 6, 13 (1st Cir. 2006), the First Circuit held that ``the complete 
separation of an employee from his or her employer for a period of 
[five] years * * * does not prevent the employee from counting earlier 
periods of employment toward satisfying the 12-month requirement.'' 
Based on the Department's experience in administering the FMLA, the 
First Circuit's ruling in Rucker, and comments received in response to 
the RFI, the Department proposes to provide that, although the 12 
months of employment generally need not be consecutive, employment 
prior to a break in service of five years or more need not be counted. 
Although employers are certainly free to do so, so long as they 
uniformly apply their policy. Periods of employment prior to longer 
breaks in service also must be counted if the break is occasioned by 
the employee's National Guard or Reserve military service, or was 
pursuant to a written agreement concerning the employer's intent to 
rehire the employee. The Department believes that this approach strikes 
an appropriate balance between providing re-employed workers with FMLA 
protections and not making the administration of the Act unduly 
burdensome for employers.
    Many RFI commenters asked the Department to clarify the current 
regulation's provision that states, ``[e]mployees cannot waive, nor may 
employers induce employees to waive, their rights under FMLA.'' Federal 
circuit courts have disagreed as to whether this language means an 
employee and employer cannot independently settle past claims for FMLA 
violations (e.g., as part of a settlement agreement), as opposed to 
meaning that an employee can never waive his/her prospective FMLA leave 
rights.\2\
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    \2\ Compare Taylor v. Progress Energy, 493 F.3d 454 (4th Cir. 
2007), petition for cert. filed, 75 U.S.L.W. 3226 (Oct. 22, 2007) (No. 
07-539) with Faris v. Williams WPC-I, Inc., 332 F.3d 316 (5th Cir. 
2003).
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    The proposed rule clarifies that employees may settle claims based 
on past employer conduct. The current regulation's waiver provision was 
intended to apply only to the waiver of prospective rights, and the 
proposed rule amends the provision to reflect explicitly this 
intention. The Department's position has always been that employees and 
employers should be permitted to agree to the voluntary settlement of 
past claims without having to first obtain the permission or approval 
of the Department or a court.
    The Department also is proposing to change the current regulatory 
requirements regarding the interaction between FMLA leave and light 
duty work. At least two courts have interpreted the Department's 
current regulation to mean that an employee uses up his or her 12-week 
FMLA leave entitlement while working in a light duty assignment.\3\
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    \3\ See Roberts v. Owens-Illinois, Inc., 2004 WL 1087355 (S.D. Ind. 
2004); Artis v. Palos Community Hospital, 2004 WL 2125414 (N.D. Ill. 
2004).
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    These holdings differ from the Department's interpretation of the 
current regulation, which provides that, although the time an employee 
works in a voluntary light duty position counts against the employee's 
FMLA rights to job restoration (i.e., the employee's restoration right 
lasts for a cumulative period of 12 weeks of FMLA leave time and light 
duty time), the employee's light duty time does not count against his 
or her FMLA leave balance.\4\
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    \4\ Wage and Hour Opinion Letter FMLA-55 (Mar. 10, 1995).
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    The Department is proposing changes to ensure that employees retain 
both their full FMLA leave entitlement and their right to reinstatement 
for a full 12 weeks while in a light duty position. If an employee is 
voluntarily performing light duty assignment work, the employee is not 
on FMLA leave and the employee should not be deprived of future FMLA-
qualifying leave or FMLA job protection while performing such work.
Regulatory Proposals to Foster Better Communication Between Employees, 
        Employers and Health Care Providers
    The comments to the RFI indicate that, despite the extensive 
outreach done by the Department over the years and the widespread use 
of FMLA leave, gaps in the knowledge about FMLA-related rights and 
responsibilities remain. The Department believes that a key component 
of making the FMLA a success is effective communication between 
employees and employers. However, it appears that many employees still 
do not know their rights under the law, how the FMLA applies to their 
individual circumstances, or what procedures they need to follow to 
request FMLA leave. This lack of understanding may contribute to some 
of the problems identified with the medical certification process and 
with employers' ability to properly designate and administer FMLA 
leave. Accordingly, the Department is proposing a number of changes to 
the FMLA's notification and certification processes. These changes are 
intended to foster better communication between workers who need FMLA 
leave and employers who have legitimate staffing concerns and business 
needs.
    The proposed rule consolidates all the employer notice requirements 
into a ``one-stop'' section of the regulations. The proposal also 
imposes increased notice requirements on employers so that employees 
will better understand their FMLA rights and the FMLA leave available 
to them. The proposal further seeks to improve the accuracy and 
completeness of communication by extending the time for employers to 
send out eligibility and designation notices from two business days to 
five business days.
    In addition, the proposal specifies that, if an employer deems a 
medical certification to be incomplete or insufficient, the employer 
must return it to the employee, specify in writing what information is 
lacking, and then give the employee seven calendar days to cure the 
deficiency. These changes will help ensure that employees are not 
denied leave because they did not understand how much leave they had 
available or what additional information their employer needed in order 
to approve the request.
    The Department also believes that employees must do all they can to 
inform their employer as soon as possible when FMLA leave is needed. 
The lack of advance notice (e.g., before the employee's shift starts) 
for unscheduled absences is one of the biggest disruptions employers 
identify as an unintended consequence of the current regulations. 
Although the current regulation provides that employees are to provide 
notice of the need for FMLA leave ``as soon as practicable under the 
facts and circumstances,'' the rule has routinely been interpreted to 
allow some employees to provide notice to an employer of the need for 
FMLA leave up to two full business days after an absence, even if 
notice could have been provided sooner.
    The Department proposes to maintain the requirement that an 
employee provide notice as soon as practicable under the facts and 
circumstances of the particular case, but is eliminating the so-called 
``two-day'' rule. Absent an emergency situation, the Department expects 
that in cases where an employee becomes aware of the need for 
foreseeable FMLA leave less than 30 days in advance, it will be 
practicable for employees to provide notice of the need for leave 
either on the same or the next business day after the need for leave 
becomes known. For unforeseeable leave, the Department expects that, in 
all but the most extraordinary circumstances, employees will be able to 
provide notice to their employers of the need for leave at least prior 
to the start of their shift. The proposal also provides, as does the 
language of the current regulation, that an employee needing FMLA leave 
must follow the employer's usual and customary call-in procedures for 
reporting an absence (except one that imposes a more stringent timing 
requirement than the regulations provide). The Department believes that 
these changes reflect a common-sense approach that better balances the 
needs of employees to take FMLA leave with the interests of employers 
and other workers.
    The Department also is proposing changes to the medical 
certification process in order to address concerns heard from 
employees, employers and health care providers--all of whom agree that 
the current system is not working as smoothly as it could. In addition, 
the passage of HIPAA and the promulgation of regulations by the 
Department of Health and Human Services that provide for the privacy of 
individually identifiable health information,\5\ provide additional 
reasons for the Department to reexamine the process used to exchange 
medical information under FMLA.
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    \5\ 45 CFR Parts 160 and 164 (referred to as the ``HIPAA Privacy 
Rule'').
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    The proposal improves the exchange of medical information by 
updating the Department's optional medical certification form and by 
allowing--but not requiring--health care providers to provide a 
diagnosis of the patient's health condition as part of the 
certification. Comments to the RFI suggest that, in practice, it may be 
difficult to provide sufficient medical facts without providing the 
actual diagnosis. However, the Department does not intend to suggest by 
including such language that a diagnosis is a necessary component of a 
complete FMLA certification.
    The Department also believes that HIPAA's privacy protections for 
patient (employee) health information have made some of the 
requirements in the current FMLA regulations unnecessary. Thus, in lieu 
of the current regulation's requirement that the employee give consent 
for the employer to seek clarifying information relating to the medical 
certification, the proposed rule highlights that contact between the 
employer and the employee's health care provider must comply with the 
HIPAA privacy regulation. Under the HIPAA Privacy Rule, the health care 
provider of the employee must receive a valid authorization from the 
employee before the health care provider can share the protected 
medical information with the employer.
    The proposed rule also makes clear that, if authorization under 
HIPAA is not given, an employee may jeopardize his or her FMLA rights 
if the information provided is incomplete or insufficient. In addition, 
as long as the requirements of the HIPAA health information privacy 
regulations are met, the proposal permits an employer to contact an 
employee's health care provider directly for purposes of clarification 
and authentication of a medical certification form. As under the 
current rules, however, employers may not ask health care providers for 
additional information beyond that required by the certification form. 
The Department believes that these changes will address the unnecessary 
administrative burdens the current requirements create and, in light of 
the extensive protections provided by the HIPAA privacy regulations, 
will not impact employee privacy. It has always been the case, as the 
statute allows, that employees must provide a complete and sufficient 
medical certification if requested to do so by the employer, and that 
failure of the employee to comply with the request jeopardizes the 
employee's FMLA protection.
    The Department also believes that clarifying the timing of 
certifications will improve communications between employees and 
employers. The proposal, therefore, codifies a 2005 Wage and Hour 
Opinion letter that stated that employers may request a new medical 
certification each leave year for medical conditions that last longer 
than one year. The proposal also clarifies the applicable period for 
recertification. Under the current regulations, employers may generally 
request a recertification no more often than every 30 days and only in 
conjunction with an FMLA absence, unless a minimum duration of 
incapacity has been specified in the certification, in which case 
recertification generally may not be required until the duration 
specified has passed. Because many stakeholders have indicated that the 
regulation is unclear as to the employer's ability to require 
recertification when the duration of a condition is described as 
``lifetime'' or ``unknown,'' the proposal restructures and clarifies 
the regulatory requirements for recertification. In all cases, the 
proposal allows an employer to request recertification of an ongoing 
condition at least every six months in conjunction with an absence.
    In addition, the Department is proposing two changes to fitness-
for-duty certifications. The current FMLA regulations allow employers 
to enforce uniformly applied policies or practices that require all 
similarly situated employees who take leave to provide a certification 
that they are able to resume work. Under the current regulations, 
however, the certification need only be a ``simple statement'' of the 
employee's ability to return to work. The Department believes that an 
employer should be able to require that the certification specifically 
address the employee's ability to perform the essential functions of 
the employee's job, as long as the employer has provided the employee 
with appropriate notice of this requirement. Second, the proposal would 
allow an employer to require a fitness-for-duty certification up to 
once every 30 days before an employee returns to work after taking 
intermittent leave when reasonable job safety concerns exist. The 
Department believes that these two changes appropriately balance an 
employer's duty to provide a safe work environment for everyone with 
the desire of employees to return to work when ready.
Other Regulatory Proposals
    The Department is proposing a number of additional targeted updates 
to the current FMLA regulations to resolve ambiguities and problematic 
workplace consequences, without limiting employee access to FMLA leave. 
A few of the more important updates are discussed below.
    The Department is proposing to provide guidance on two terms in the 
current regulatory definition of a serious health condition. One of the 
definitions of serious health condition requires more than three 
consecutive calendar days of incapacity plus ``two visits to a health 
care provider.'' Because the current rule is open-ended, the Tenth 
Circuit has held that the ``two visits to a health care provider'' must 
occur within the more-than-three-days period of incapacity. See Jones 
v. Denver Pub. Sch., 427 F.3d 1315, 1323 (10th Cir. 2006). Rather than 
leaving the ``two visit'' requirement open-ended, the Department 
proposes that the two visits must occur within 30 days of the beginning 
of the period of incapacity, absent extenuating circumstances. By 
clarifying that the period should be 30 days, the Department believes 
it is providing greater FMLA protection than the stricter regulatory 
interpretation offered by the Tenth Circuit.
    Second, the Department proposes to define ``periodic visits'' for 
chronic serious health conditions as at least two visits to a health 
care provider per year. The Department is aware that some employers 
have defined this term, which is currently undefined in the 
regulations, narrowly to the detriment of employees. At the same time, 
other employers have expressed concern that the current open-ended 
definition does not provide sufficient guidance to employers who must 
approve or disapprove leave and risk making the wrong decision. The 
Department believes a reasonable solution is to define ``periodic'' as 
twice or more a year, based on an expectation that employees with 
chronic serious health conditions generally will visit their health 
care providers at least that often, but they might not visit them more 
often, especially if their conditions are fairly stable.
    The Department also proposes changes to the current regulatory 
requirements for perfect attendance awards when an employee is on FMLA 
leave. The Department proposes to allow an employer to disqualify an 
employee from a perfect attendance award because of an FMLA absence. 
However, an employer would not be permitted to disqualify only those 
individuals on FMLA-qualified leave and allow other employees on 
equivalent types of non-FMLA leave to receive such an award without 
violating the FMLA's non-discrimination requirement. This change 
addresses the unfairness perceived by workers and employers as a result 
of allowing an employee to obtain a perfect attendance award for a 
period during which the employee was absent from the workplace on FMLA 
leave.
    Finally, the Department also proposes to update the regulation 
addressing the substitution of accrued paid leave for unpaid FMLA 
leave. The proposed updates reflect the trend of employers providing 
employees with ``Paid Time Off'' (PTO), instead of reason-based leave 
(i.e., sick leave, vacation leave). The revisions also respond to 
comments indicating that an unintended consequence of the current 
regulation (which has been interpreted as prohibiting employers from 
applying their normal leave policies to employees who are substituting 
their paid vacation and personal leave for unpaid FMLA leave) is that 
employers may be encouraged to scale back their provision of paid 
vacation and personal leave. Such leave policies are more generous than 
what is required by the Act. The proposed update also is consistent 
with how the Department's enforcement position on this issue since 
1995. Since then, in a series of opinion letters, the Department has 
recognized that an employee's right to use paid vacation leave is 
subject to the policies pursuant to which the leave was accrued.\6\
---------------------------------------------------------------------------
    \6\ Wage and Hour Opinion Letter FMLA-75 (Nov. 14, 1995); Wage and 
Hour Opinion Letter FMLA-81 (June 18, 1996); see also Wage and Hour 
Opinion Letter FMLA-61 (May 12, 1995).
---------------------------------------------------------------------------
    The proposed rule applies the same requirements to the substitution 
of all forms of accrued paid leave. Under the proposed rule, an 
employee may elect to utilize accrued paid vacation or personal leave, 
paid sick leave, or paid time off, concurrently with FMLA leave when 
the employee has met the terms and conditions of the employer's paid 
leave policy. The Department also believes certain safeguards for 
employees are necessary. Therefore, the proposed rule clarifies that an 
employer must make the employee aware of any additional requirements 
for the use of paid leave and must inform the employee that he or she 
remains entitled to unpaid FMLA leave even if he/she chooses not to 
meet the terms and conditions of the employer's paid leave policies.
Conclusion
    Fifteen years ago, Congress recognized that maintaining a careful 
balance between the legitimate rights of employees and employers in the 
workplace was the key to making the FMLA a success. Today, after 15 
years of experience in administering and enforcing the FMLA, the 
Department is pleased to report that the FMLA is generally working well 
in the majority of cases and has succeeded in allowing working men and 
women to better balance family needs and work responsibilities. 
However, the Department also knows that the FMLA has not worked well in 
every case as evidenced not only by responses to the RFI but also by 
the various court decisions that have overturned specific provisions of 
the current rule.
    It is time to make targeted changes to the current FMLA 
regulations, and, at the same time, implement the new law providing 
leave for the families of military servicemembers. We look forward to 
reviewing the comments on the NPRM.
    Thank you for the invitation to appear before this committee. I 
will be happy to answer any questions you may have.
                                 ______
                                 
    Ms. Lipnic. I will say at the outset, having worked with 
our enforcement personnel over a number of years at the Labor 
Department and having talked with many of them around the 
country, I have observed that few laws generate the kind of 
support and desire to make sure the law is working properly as 
does the FMLA, not that we do not take all of our statutory 
responsibilities seriously, but because this is a law that 
everyone can relate to, I think there is a special place 
reserved for it in the department's administration of its many 
laws.
    I also want to say at the outset that this rulemaking 
issued in February includes, as you both noted, an extensive 
discussion of the new leave entitlements for military families 
that were signed into law by President Bush on January 28. The 
department takes its commitment to service members and their 
families very seriously, and because one of the provisions 
providing additional FMLA leave protection for military 
families cannot go into effect until the Secretary of Labor 
defines certain terms by regulation, we are moving as 
expeditiously as possible.
    We have reached out to the Departments of Defense and 
Veterans' Affairs and the Office of Personnel Management, as 
well as groups representing service members and their families, 
to obtain their input. Both before the comment period on this 
rulemaking and during it, we invited a number of the military 
family and service organizations to meet with us to help us 
better understand the unique needs of these service member 
families.
    While our proposal asks a number of very difficult 
questions that must be addressed in the rulemaking process, we 
believe this will allow us to finalize these regulations as 
quickly as possible, thus ensuring that military service 
members and their families receive the full protection of the 
FMLA when they need it most.
    To that end, the department approached this rulemaking in a 
very careful, deliberative, and very transparent process. We 
began a review of the regulations in late 2002, holding 
stakeholder meetings that year and the year following, with 
more than 20 groups representing employers and employees.
    In December 2006, recognizing that we needed some fresh 
thinking on the issues, we published a Request for Information, 
seeking public comment on many aspects of the regulations and 
also asking for more information and data from the public's 
real world experiences administering the FMLA over the past 15 
years. We had an enormous response to that record, more than 
15,000 comments, which culminated in our publishing our report 
on the Request for Information in June of 2007.
    Our goal in publishing that report was to do a number of 
things: first and foremost, to allow the record to speak for 
itself, and, secondly, to, as we said at that time, allow all 
parties to engage in a fuller discussion of the issues 
presented in those comments. The comments we received were from 
workers, family members, employers, academics, and other 
interested parties. Many of the comments were brief emails with 
very personal accounts from employees who had used family or 
medical leave. Others were highly detailed and substantive 
legal or economic analyses responding to the specific questions 
in the Request for Information and raising other complex 
issues.
    We had a chance to brief the Education and Labor Committee 
in a bipartisan fashion on that report last June, and we very 
much appreciated the opportunity to do so.
    And, of course, we have also reviewed our own enforcement 
experience and our policies over the past 15 years, as well as 
the enormous body of case law that has developed during that 
time. A number of things were clear to us from the record 
developed in response to the request for information: first, 
the tremendous value of the law to workers; second, that the 
FMLA is generally working well; and, third, that like any new 
law, especially one that borrows concepts from other laws, 
there have been a number of unanticipated consequences to the 
law's use and how it has operated in workplaces around the 
country. One thing that was very clear to us from the record is 
that not all workplaces experience the FMLA in the same manner.
    There is broad consensus that the law is valuable for 
workers and their families. There are also a number of issues 
that workers, employers, and health care professionals have 
identified as needing to be updated in order to make the law 
work better for everyone. This should be expected as it has 
been almost 15 years since the department's first interim final 
rule implementing the FMLA went into effect. Much has happened 
since then. Numerous court rulings examining the act and the 
implementing regulations, statutory and regulatory 
developments, such as passage of the Health Insurance 
Portability and Accountability Act that directly or indirectly 
impacts administration of the FMLA.
    As we said in the RFI report, the FMLA has succeeded in 
allowing working parents to take leave for the birth or 
adoption of a child and in allowing employees to be absent for 
blocks of time while they recover from their own serious health 
conditions or to care for family members recovering from 
serious health conditions. The FMLA also seems to be working 
fairly well when employees are absent for scheduled treatments 
related to their own serious health conditions or that of a 
family member.
    Employers often express some frustration, however, about 
difficulties in maintaining necessary staffing levels and 
managing attendance in their workplaces, particularly when 
employees take leave on an unscheduled basis with no advance 
notice. For example, the RFI report indicated that time-
sensitive industries, such as transportation operations, public 
health and safety operations, including hospitals, nursing 
homes, emergency 911 services, and assembly line manufacturers 
may be especially impacted by employees taking unscheduled 
intermittent FMLA leave.
    I see that my time is up. So I am happy to conclude there, 
and I am happy to address any specifics of the proposed rule in 
question and any other questions regarding our enforcement of 
the law over the last 15 years.
    Chairwoman Woolsey. All right. Thank you very, very much, 
Secretary Lipnic.
    As I said, I was a human resources professional for over 20 
years, and it was very clear to me that the support you gave 
your employees, you got back double in loyalty and in their 
ability to focus on their job versus worrying about their 
families.
    Let me ask you in--it seems to me that something that is 
missing in this review the question of how we can make changes 
that make it better for the worker that we have learned from 
these 15 years. I mean, for example, we have learned that 
family medical leave works wonderfully if a person can afford 
to be away from work because it is not paid.
    Have you put any of your study into paid medical leave and 
other topics, such as paid leave benefits for part-time 
workers? What have you looked at besides just changing it so 
that the employer gets protected?
    I am all for understanding that you cannot have people 
running in and out of the workforce minute by minute. We cannot 
do that in our offices. But, actually, when somebody has an 
emergency need, you cannot schedule that. So tell me if there 
are other things you have looked at.
    Ms. Lipnic. Madam Chairwoman, when we did the Request for 
Information, we asked questions on a broad array of issues that 
we had heard about from the regulated community, from 
employees, from all people who are subject to the law and not 
over the last 15 years, and we did get many, many comments that 
requested that leave be paid. We did not address those in the 
report that we published on our regulatory review because our 
focus was specifically on how the Labor Department has 
administered the law and how we have done so through the 
regulations, but it is certainly the case that we got many 
comments--and we indicated this in our report--suggesting that 
people were very interested in paid leave.
    Chairwoman Woolsey. How did this outreach come along? I 
mean, it was very easy to reach the employer because we know 
who the employers are. How did you reach the employees?
    Ms. Lipnic. Well, we have done a number of things over the 
past few years. First of all, the Request for Information was 
published in the Federal Register and available for public 
comment by absolutely anyone who wanted to comment, and----
    Chairwoman Woolsey. And we know that every employee reads 
the Register daily, right?
    Ms. Lipnic. Well, we do get----
    Chairwoman Woolsey. ``Oh, it is time to read the 
Register.''
    Ms. Lipnic. We did get 15,000 comments to the record, many 
from individual employees. So, certainly, there was an 
awareness that a review of the regulations and the law was 
going on.
    We also over the years have had stakeholders meetings where 
we have talked to groups representing both employers and 
employees.
    After we published the Request for Information, the report 
on it, last June recognizing how much concern and how many 
issues there were related to the medical certification process 
under the current law and how it works, we had another 
stakeholder meeting where we invited in employee groups, again 
employers, and for the first time health care providers who are 
incredibly important and play an incredibly important role in 
the administration of the law.
    Chairwoman Woolsey. Okay. I am going to change the subject 
just quickly. When we talk about the FMLA for military 
families, we would like very much to have an interim 
rulemaking, in that this occupation in Iraq is into its sixth 
year. There are families--they are not waiting for this rule to 
leave their jobs to help their loved ones, and it does not just 
have to be a family member. It can also be, you know, a close 
relative.
    But I am telling you if we do not--if we wait 2 more years 
for final rules, hopefully, this occupation will be over, but 
the results of it are not going to be over, and we need to step 
up to this right now. So tell me: Are you looking at interim 
regulations and interim rules that could be depended on while 
we are putting the final rules together?
    Ms. Lipnic. We did have an extensive discussion when the 
new military family leave provisions were passed about what we 
thought was the best way to proceed and to move and how we 
could get as quickly as possible to rules. I do want to point 
out, of course, that the one provision for caregiving that 
allows the 26 work weeks of leave is already in effect and went 
into effect on the day that the President signed that bill into 
law.
    Following the enactment and the President signing it into 
law, we posted some guidance on our Web site to make sure that 
employers would know that they have to provide that leave if it 
is requested. We have had some inquiries already, certainly at 
the Labor Department, to our enforcement personnel about 
providing that leave. So that provision is actually already in 
effect, and the families who are in need of caregiving leave 
are able to take that.
    As to interim rules, as I mentioned, we had an extensive 
discussion about what we thought was the quickest and best way 
to implement this. Given that we had a rulemaking underway, 
which was fairly well known, we were able to include the many, 
many questions that we have to wrestle with in coming up with 
the regulations to implement the military family provisions.
    We believed then and certainly believe now, given how far 
we are into this process and the groups that we have talked to, 
that interim rules at this point would be a step backward, and 
they would delay us. We think we can get to final rules in a 
much quicker fashion, certainly once the record closes 
tomorrow.
    I will also tell you it is certainly not the Labor 
Department's intention to take 2 years to finalize rules.
    Chairwoman Woolsey. Well, all right. Well, we look forward 
to working with you on this and ensuring that those rules get 
finalized ASAP. They are simple.
    Now I would like to yield to Mr. Wilson.
    Mr. Wilson. Thank you, Madam Chairwoman.
    And, Madam Secretary, thank you for your service. You, 
indeed, have an excellent reputation as a former staff person 
here as to your capabilities and competence, and we greatly 
appreciate your service as an Assistant Secretary and wish you 
well on your career.
    In the department's proposed regulations, you addressed the 
issue of employers granting incentive bonuses, such as perfect 
attendance awards. Are these bonuses currently lawful? Has 
FMLA, in your view, acted to deter employers from offering 
these sorts of awards? What is the proposed change necessary?
    Ms. Lipnic. Congressman, under the current regulations for 
employers who provide perfect attendance awards, employers are 
required by the current regulations to provide perfect 
attendance awards to individuals who have been out on family 
medical leave, and we have had many, many comments to the 
record that we have created through the Request for Information 
and certainly have heard about over the years that many 
employers find that that requirement--that it devalues the 
incentive that perfect attendance awards are designed to 
provide in the workplace.
    What we have proposed is to make a change so that employers 
do not have to provide perfect attendance awards to someone who 
is on family medical leave, they are free to do so, and they 
also must make sure that they treat everyone who is on any 
other form of leave, other than family medical leave--it would 
be other types of absences or other types of sick leave--that 
they treat all people, all their workers equally. So they 
cannot discriminate against someone who is on family medical 
leave, but they cannot place them in a preferred status either. 
And the idea was to restore--what we had heard--the incentive 
for perfect attendance awards is.
    Mr. Wilson. Well, over the weekend, I was with a dear 
family friend of ours, former administrative federal law judge 
Thomasine Mason, and with Congresswoman Schroeder being here, 
Judge Mason is famous as the first female elected to a full 
term to the state senate of South Carolina. She served as 
federal judge. She has earned like 3 years of additional leave 
based on perfect attendance, a remarkable lady, and so I have 
seen it firsthand.
    How has the passage of the Health Insurance Portability and 
Accountability Act, or HIPAA, affected employees' protections 
under FMLA? How does the department's proposed regulation 
address this issue?
    Ms. Lipnic. Congressman, we have proposed a number of 
things to essentially make the Family and Medical Leave Act 
regulations align better with HIPAA. The FMLA was passed in 
1993, and then HIPAA, of course, came along in 1996, and HIPAA 
covers the field for medical privacy.
    So, because the FMLA regulations preceded HIPAA, we have 
made a couple of changes--or proposed a couple of changes--
where we are essentially saying the Labor Department in its 
regulations does not have to be involved in the medical privacy 
issue. That is now governed by HIPAA.
    The FMLA statute requires that if employers request a 
medical certification form from their employees, the employees 
must provide a complete and sufficient form to their employer, 
and that obligation is on employees, and that has been in the 
statute from the beginning.
    Employees have to ensure now because of HIPAA that they 
have filled out and arranged with their health care provider 
that they have a current HIPAA authorization form in effect 
with their health care provider so that when they need to have 
their medical information provided to the employer, either 
through the medical certification form or if they want the 
employer to somehow get it otherwise, that that HIPAA 
authorization form has been appropriately filled out by the 
employee, and that is the employee's responsibility.
    Health care providers are not going to provide information 
to any employer unless they have a HIPAA authorization form on 
file from the employee and that that information has been 
filled out, which was one of the intents of HIPAA.
    So our proposal is merely to make sure that the FMLA 
regulations align with HIPAA and to make it clear to employees 
and employers that HIPAA is in play and that the employees need 
to make sure that they have the HIPAA authorization form filled 
out and that that will cover the privacy issues for the 
employee.
    Mr. Wilson. Thank you very much.
    Chairwoman Woolsey. Congressman Bishop?
    Mr. Bishop. Thank you very much, Madam Chair, and thank you 
very much for holding this hearing. I think it is very 
important.
    Madam Secretary, a couple of questions. The Chair was 
asking you about the rulemaking that is currently going on. 
Essentially, there are two rulemakings going on that, as I 
understand it, are joined, one having to do with the proposed 
changes to the current regulations and the other having to do 
with the expansion of FMLA with respect to military families.
    The proposed changes to the current regulations are 
considerably more controversial than are the changes to 
military families. Would the department be willing to delink 
the two rulemakings so that we could have the military family 
regulations in place much sooner than would be the case if we 
were to carry forward as you currently are?
    Ms. Lipnic. Congressman, as I was saying earlier, we gave a 
lot of consideration to that, what was the quickest and best 
way to proceed to implement the military family leave 
provisions. I would point out we do not consider them two 
separate rulemakings because the military leave provisions 
amended the underlying Family and Medical Leave Act.
    Mr. Bishop. Okay. I think that is basically the thrust of 
my question. Would you be willing to consider them to be two 
separate rulemakings?
    Ms. Lipnic. We looked at that initially, but because the 
military family leave provisions amend the underlying FMLA and 
because there are any number of issues regarding notice and 
certification that impacts the underlying FMLA, we think the 
better approach, as we laid out in this rulemaking, is to move 
forward with the full rulemaking so that the military family 
leave provisions, presumably as Congress intended, are 
completely integrated with the underlying FML Act.
    Mr. Bishop. I think the Congress's primary intent was to 
get this done as quickly as possible, and my own view is that I 
think we would see the delinking as the best path to that.
    Let me move to a somewhat different area. The proposed 
changes to the current regulations have been characterized by 
some as being tilted more in the favor of the employer or 
management than of the employee. How would you respond to that 
characterization?
    Ms. Lipnic. I have certainly seen those characterizations. 
I do not believe that that is true. I will--it is certainly the 
case that when we looked at all of the regulations and, you 
know, I would point out that regulations under the FMLA in 
particular, unlike many other regulatory themes, really operate 
as a whole. Every part of them is linked together. And we 
certainly looked at where, based on the enormous record that we 
had developed from the Request for Information, we thought it 
was appropriate to realign some responsibilities. That includes 
some realignment of responsibilities for employers, where we 
imposed additional obligations on employers, and realigning 
some responsibilities on employees.
    I do not think on balance, though, that it is sort of pro-
employer or pro-employee, and I guess the other thing that I 
would add is I think, in the discussion of the FMLA, I think it 
is a false dichotomy to set this up as sort of an employer 
versus employee thing, particularly given what we are trying to 
encourage through the changes to these regulations is greater 
communication in the workplace between the employers and the 
employees.
    Mr. Bishop. What you are describing is, in fact, an ideal 
world. I think we all sort of need to recognize that not all of 
us live in that ideal world.
    Let me be more specific. One of the proposed changes to the 
regulations would require those employees with chronic ailments 
to periodically receive, in effect, a doctor's certification 
that that ailment remains a current condition for the employee, 
and it has been estimated that that, along with other 
provisions, would cost about $26 million a year for both 
employers and employees. Would you not see that as a burden to 
employees that might discourage them from availing themselves 
of FMLA leave?
    Ms. Lipnic. Congressman, as to the individuals who have 
chronic serious health conditions, under the current 
regulations, the requirement is that they have periodic visits 
to a health care provider. That period is undefined in the 
current regulations and sometimes undefined to the detriment to 
employees.
    Employers are entitled to a medical certification under 
current law--that is in the statute--whether it is a chronic 
serious health condition or any other type of health condition, 
and the proposed rules which allows for an annual certification 
of the chronic health condition essentially codifies what has 
been the department's enforcement policy over a number of 
years. It is not really a change from how the law has been 
implemented over a number of years.
    Mr. Bishop. Okay. Thank you very much. My time has expired.
    Thank you.
    Chairwoman Woolsey. Congressman Kline?
    Mr. Kline. Thank you, Madam Chair.
    Thank you, Madam Secretary, for joining us today.
    I have a couple of questions just because I do not 
understand in a couple cases what the current rules are and 
certainly what the proposed changes are.
    For one thing, in your written testimony, you made some 
points about call-in procedures. I do not know what the 
regulations currently provide, frankly. And then what would be 
the changes that are coming forward? Can you just kind of 
explain how that works?
    Ms. Lipnic. Congressman, the issue about notice, notice 
both that employers have to provide to employees about their 
FMLA rights and their obligations and notice by employees to 
employers is something that we put a lot of attention on in 
this rulemaking and something that we heard a great deal about 
in the Request for Information.
    Under the current regulations, part of the reason it is 
confusing is that the regulations make distinctions between 
when an employee requests leave that is foreseeable--in other 
words, if they are going to have surgery and they know long 
enough in advance and they can tell their employer and, under 
the statute, are supposed to tell the employer 30 days ahead of 
time so that for everyone they can schedule around that 
absence----
    So there is leave that is termed foreseeable, there is 
leave that is termed unforeseeable, which is essentially 
unscheduled leave, and that is where the issues of notice and 
how much notice the employees have to provide to the employer 
get confusing, and the current regulations are somewhat 
confusing on that.
    The standard in the statute is that anything that is less 
than 30 days, unforeseeable, that the employee should provide 
notice to the employer as soon as is practicable. That is then 
translated into the regulations as soon as practicable based on 
the facts and circumstances, but within 2 days, and that 2 days 
became hard and fast potentially 2 days after the fact, after 
you have been absent from the workplace, providing notice to 
employers.
    There is also in the current regulations at least one 
sentence that employees are supposed to follow employers' call-
in procedures, followed by the next sentence that says, 
``except when they do not.'' So it is fairly muddled.
    What we are trying to do is bring some clarity to that in 
the proposal and, essentially, particularly when it is 
unscheduled leave, to ensure that the requirement is that 
employees follow the employers' call-in procedures, that that 
has to be the default standard, and that the default standard 
also has to be that employees notify their employers when they 
are going to be absent as soon as possible, as soon as 
practicable, but that should not be 2 days after the fact.
    We do allow for emergency circumstances because we 
certainly recognize that particularly if it is unscheduled 
leave or there is some unforeseeable circumstance that 
employees may not be able to notify their employers before--
follow the call-in procedures or before their shift starts, but 
we think that has to be the default rule and that the 
regulations probably went a little bit further. They certainly 
went further than what the standard was in the underlying 
statute.
    So we are trying to make the default rule that everybody 
has as much notice ahead of time and that employees have to 
follow the call-in procedures.
    Mr. Kline. Okay. Thank you.
    I want to move to intermittent leave now that the 
chairwoman mentioned that briefly in her remarks. Because it 
does seem a matter of some concern, it seems a little bit 
surprising that the department chose not to address 
intermittent leave, as I understand it. Can you explain in 
whatever time we have left what the issues are that surround 
that and why you chose not to address it?
    Ms. Lipnic. Sure. And I will say that the issue about use 
of intermittent leave is something that we have heard about in 
enormous fashion on both sides of this issue and how it is used 
in the workplace.
    Under the FMLA, employees have the right to 12 weeks of 
leave. That leave can be taken in a block. It can be taken in 
weeks. It can be taken in days. It can be taken in minutes. 
That is what the regulations provide for, and that essentially 
becomes the intermittent leave.
    The purpose of it was to allow people, who may have a 
medical condition that flares up, to be late for work for an 
hour or go to a doctor's visit. Because the regulations allow 
for the taking of the intermittent leave in minutes, what we 
heard from many, many employers is that that is incredibly 
difficult to administer, that it often, particularly for people 
who may have a chronic health condition, becomes a license for 
being tardy and that the employers have no way to verify this 
absence and the amount of time that is being taken.
    And, certainly, the use of intermittent leave in certain 
workplaces is a real issue and I, frankly, think something that 
Congress is going to need to look at further. It had been 
suggested to us many times--and, in fact, this was suggested 
back when the rules were first implemented in 1993--that the 
time increments that employees are allowed to take intermittent 
leave should not be in minutes, that it should be in some 
greater block of time, an hour, 2 hours, a half a day, that 
that is how much time they should be charged.
    The department chose not to do that back in 1993, and we 
did not think, despite the suggestions and the desires of many 
employers that we do so, that we could change that time 
increment given the statutory language, and I know that is 
something that--and I certainly heard during this rulemaking 
process that--employers are not particularly happy with.
    And, again, I would suggest that I think the issue of 
intermittent leave is something Congress probably needs to 
grapple with in a fashion greater than was our ability at the 
Department of Labor.
    Mr. Kline. Thank you very much.
    I yield back.
    Chairwoman Woolsey. Thank you.
    Congressman Hare?
    Mr. Hare. Thank you, Madam Chair. Thank you for having the 
hearing.
    Welcome, Madam Secretary.
    Just a couple of questions for you. One is, you know, I 
realize businesses with five employees would struggle if even 
one employee were to get sick or took extended leave, but this 
is really an issue of fairness, it would seem to me, and doing 
what is right.
    I am wondering if you have any suggestions on what we could 
do to help smaller businesses comply with FMLA, because if a 
person needs the leave to be with somebody, simply because they 
work for a business that is small--granted I understand the 
ramifications of losing that person, but, by the same token, 
the employee's basically penalized for working for a small 
company.
    So I wonder if you might comment on that.
    Then I just maybe had one other follow up for you.
    Ms. Lipnic. Congressman, I think, you know, as many 
employment statutes have exceptions for small business, and 
everyone recognizes those difficulties that you have pointed 
out that small businesses operate on such different margins 
than larger companies. I think it is a difficult issue, and, 
certainly, Congress had a lot of debate when it set the 
employee threshold at 50 employees for the underlying FMLA.
    I am not sure I know exactly what to tell you in response 
to that. The one thing that I would suggest is I think if you 
were looking to make some changes to have a guarantee of 
whether it is sick leave or family medical leave for small 
businesses, you would have to look at a number of the issues, 
including the issue about using intermittent leave, and how 
that has operated in larger businesses.
    Just as you pointed out, you know, the smaller the 
business, once someone is absent, the impact is certainly 
greater there. It is a difficult issue, and I would certainly 
defer to folks with a lot more specialty in running small 
businesses and seek their counsel on it.
    Mr. Hare. I appreciate that.
    The department is proposing regulatory changes to FMLA, 
and, you know, this is a 15-year-old law, but, as I understand 
it, it has not really done any data collection on how well the 
law is working. In fact, the department, as I understand it, 
has not done a comprehensive study on FMLA since 2000. I wonder 
if you could explain the process that the department went 
through to come up with their proposals and how the department 
can justify them when you do not have any empirical data to 
support what you found out.
    Ms. Lipnic. Congressman, the Labor Department did some 
survey work back in 1999 and 2000 that was published in January 
2001 which we refer to as the Westat surveys that had a 
tremendous amount of information about the use of family 
medical leave. It also missed some important aspects, including 
how this use of intermittent leave works.
    Given the enormous body of case law and some very 
significant cases regarding the FMLA that had developed over 
the last 15 years, when we published our proposed rulemaking, 
that was based on both--the record that we had developed when 
we did the request for information where we had 15,000 
comments. We had asked for data.
    When we did the Request for Information, we had a number of 
national organizations that provided us with survey data of 
their own that they had done, and I think that overall the 
majority of what we have proposed in this rulemaking is either 
based on case law, the department's own enforcement experience 
over the last 15 years, which is fairly significant, and 
various stakeholder meetings.
    On issues where data certainly is and would be more useful, 
like, for example, to Congressman Kline's question about 
intermittent leave, we did not propose a change there. We had 
lots of recommendations to make changes to the definition of 
serious health condition, and we did not propose a change 
there. But the changes that we have proposed, we think, are 
fully supported either by the case law, our own enforcement 
experience, or the data that we had available to us.
    Mr. Hare. Let me suggest that perhaps the department might 
want to consider doing a comprehensive survey because I think, 
once you do that, you really get the data that I think you need 
in order to make, you know, some firm decisions here.
    And, lastly, in light of the evidence that the FMLA has had 
very few negative impacts on businesses, what is the 
department's concern about expanding the law to smaller 
businesses or industries that do not currently qualify.
    And I know my time is out. I just--very briefly--I am 
sorry, Madam Chair.
    Ms. Lipnic. Just to respond quickly, Congressman, I would, 
again, point out I do think there are a number of issues, 
including the use of intermittent leave that probably need to 
be examined further by Congress, and that is something that 
would certainly have to be taken into account, particularly if 
you were going to lower the employee threshold and cover 
smaller businesses.
    Mr. Hare. Thank you, Madam Secretary.
    Chairwoman Woolsey. Thank you.
    Congressman McKeon? And thank you for joining us today.
    Mr. McKeon. Well, thank you.
    And thanks for being here, Madam Secretary.
    And welcome back, Madam Chair. We missed you.
    Chairwoman Woolsey. Joe missed me.
    Mr. McKeon. I missed you--very quiet around here.
    Question, Madam Secretary. You know, as I listen to this 
and think about not just this law but other laws, you were 
questioned a little bit about why we could not move ahead with 
the military part of this, and you indicated how long things 
take around here. I was reading Congresswoman Schroeder's 
statement about how long it takes to have a baby and how long 
it takes to get a law passed, and it seems like it takes 
forever, and this law was finally passed in 1993. If you could 
just kind of walk us through the process--a law is passed. Then 
the department rights regulations--how long does that take?
    Ms. Lipnic. Well, I will give you the very lawyerly ``it 
depends.''
    Mr. McKeon. There is no law that states how long it takes 
to do the regulations?
    Ms. Lipnic. It completely depends on, first of all, what 
the underlying statute says. For example, when the FMLA was 
passed, I think Congress gave the Labor Department 120 days to 
come up with regulations, and I will tell you that when I sat 
up here, I thought that was nothing, but sitting here, I can 
tell you 120 days is no amount of time at all. So either--
Congress prescribes a time period in which regulations need to 
be promulgated.
    Very often, depending on the complexity of the particular 
law, agencies may publish something where they ask a series of 
questions which is essentially what we have done here in the 
military family leave provision, get input from the public, 
either proceed to direct final regulations then or publish 
interim regulations, it can take--and, obviously, depending on 
what Congress requires--the agency that has to administer the 
law certainly a good, you know, 3 to 6 months to come up with 
some guidance, again depending on the complexity, for the 
regulated community, but it then has to go through----
    Mr. McKeon. Do you know how----
    Ms. Lipnic [continuing]. Follow the Administrative 
Procedures Act, go through a public comment period, which is 
required to be at least 60 days, and then depending on the size 
of the record, have to review that entire record.
    Mr. McKeon. Let me get back. Do you know how long it took 
to do the regulations for this bill?
    Ms. Lipnic. For the underlying family medical leave, the 
regulations--the law was passed in 1993. The department first 
asked a series of questions, published a set of interim 
regulations in 1993. It took until August of 1995 for the final 
regulations, which everyone operates under today, to go into 
effect. There were interim regulations, but----
    Mr. McKeon. So the law said, ``We want you to pass 
regulations in 120 days,'' and that took 2 years?
    Ms. Lipnic. Well, there were interim regulations within 120 
days to meet the congressional requirement, and then another 2 
years on top of that.
    Mr. McKeon. The real regulations--if you are out in the 
real world running a business, a law gets passed, and it takes 
120 days to do some interim regulations that probably nobody 
paid too much attention to because they were waiting for the 
real regulations, but that came 2 years later.
    And now here we are 15 years later, and we are doing 
rulemaking. When did you start the rulemaking process?
    Ms. Lipnic. Well, we started with stakeholder meetings in 
late 2002 into early 2003.
    Mr. McKeon. 2002?
    Ms. Lipnic. We sort of took a break from it for a while. 
Then we----
    Mr. McKeon. Yes. I am not picking on you, I am picking on 
government, and we could do the same thing probably if we had 
industry in here because they probably take longer than people 
would like to get things done too. But, you know, I wonder 
sometimes if we have not hampered ourselves so much in trying 
to get things done that we cannot get things done.
    I look at the Pentagon, you know, out there that took a 
year to build during World War II. Now it probably could not be 
built. I am sure we have enough environmental regulations 
that--it was a swamp, so it probably could not be built there. 
I am sure there are endangered species.
    But assuming we could get through all that process, go 
through all the court cases and everything, we would probably 
be into the Vietnam War before we could get the Pentagon built, 
and I think what has done has hampered us so much in dealing--
we are in a very competitive world now. We are competing with 
China. We are competing with India. We are competing around the 
world on many different issues.
    I know I am really off of the subject, but I do not get 
this opportunity too often, so I want to get it on the record 
that we have hampered ourselves so much by laws, regulations, 
rulemaking that people could go through their whole career--and 
I am sure this is an exaggeration--before they could get their 
family leave, you know, in just one instance.
    But I think, at some point--and we could probably start in 
this committee and maybe in others simplifying some of these 
things to where common sense--we are in the sixth year of a war 
now, and we have not gotten around to how we deal with medical 
leave for the affected troops and their families, and it is not 
you. It is not the department. It is the whole system that I 
think really needs some--there is a good word going around 
now--change.
    Like every time a president comes in, we do not get change. 
We do, but what we really need to focus on is what kind of 
change and how we could do some change to benefit people. I 
think that is why they get so frustrated with our government 
that you hear these kind of answers that we cannot do something 
because we are hampered.
    Okay. I had my time to vent.
    Thank you very much. Thank you for being here. It has been 
a good day.
    Chairwoman Woolsey. Well, thank you, Congressman McKeon.
    Actually, maybe we could use the military family leave act 
as an example of how we could--because everybody is for it, you 
know, bipartisan of--maybe we could say, ``This is something we 
all agree on. Can't we make it happen?'' Let's talk about it.
    Mr. McKeon. How long should we talk about it?
    Chairwoman Woolsey. Well, not too long.
    Mr. McKeon. Yes, I am with you----
    Chairwoman Woolsey. Have it done yesterday.
    Mr. McKeon [continuing]. If you can find some way to speed 
it up.
    Chairwoman Woolsey. Thank you, Madam Secretary.
    I want to tell you are a pro up there. You did a really 
good job. Thank you very much for coming to see us.
    Ms. Lipnic. Thank you for having me.
    Chairwoman Woolsey. And now we are going to have our second 
panel.
    Mr. Wilson. I will be right back.
    Chairwoman Woolsey. All right. You do not have to tell me 
where you are going.
    I would also just like to welcome you all and to remind 
those of you who have not testified before this subcommittee in 
the past that the lighting system is a 5-minute rule. Everyone, 
including members, is limited to 5 minutes, and you saw that we 
do not, you know, cut people off at the minute the red light 
goes on.
    But when the green light is illuminated, you begin to 
speak. When you see the yellow light, that means you have 1 
minute left, and when the red light goes on, that means that 
your chair drops out, and you are going to disappear. No, it 
means that it is time to, you know, bring it all together.
    So let me introduce the entire panel in order of--that I 
have here anyway.
    I have first the honorable Pat Schroeder who was the first 
woman elected to Congress from Colorado and served in the House 
of Representatives from 1993 to 1997--1973 to 1997! I am sorry, 
Congresswoman.
    While in Congress, she served as Chair of the Select 
Committee on Children, Youth and Families, a position from 
which she was instrumental in the creation of the Family and 
Medical Leave Act. In fact, Representative Schroeder was the 
first member of Congress to introduce the family leave act on 
April 4, 1985. She introduced the Parental Leave and Disability 
Act providing leave for parents in the case of birth, adoption, 
or serious illness of a child. Her bill also mandated temporary 
disability leave for medical reasons.
    Congresswoman Schroeder was also co-chair of the 
Congressional Caucus on Women's Issues for 10 years, the first 
woman to serve on the House Armed Services Committee, and 
ranking member of the House Judiciary Subcommittee on the 
Courts and Intellectual Property.
    From 1964 to 1966, Representative Schroeder worked for the 
National Labor Relations Board. Prior to her service in 
Congress, she also worked for Planned Parenthood and taught in 
the Denver public schools. Currently, Representative Schroeder 
serves as CEO of the Association of American Publishers.
    In 1961, she earned a bachelor's degree at the University 
of Minnesota. She earned her law degree from Harvard University 
in 1964.
    Welcome, Congresswoman.
    Chante Lasco is an assistant state's attorney for 
Dorchester County, Maryland. I have to tell you we are going to 
have a series of votes, but let's get through these 
introductions and maybe have one or two--we will see how we 
do--have a couple of your reports, and then we will--then we 
will come back, we promise.
    Okay. Chante Lasco is an assistant state's attorney for 
Dorchester County in Maryland, a position she has held since 
February 2006.
    You know, if you would all be happy with this, I will just 
enter this into the record, and we will get started because it 
is going to take me 20 minutes to read all this.
    Okay. So, without objection, I am going to enter the 
introductions of our witnesses, our wonderful panel of 
witnesses, into the record, and we will begin with 
Congresswoman Schroeder.

   STATEMENT OF HON. PAT SCHROEDER, FORMER REPRESENTATIVE IN 
 CONGRESS FROM THE STATE OF COLORADO, ORIGINAL SPONSOR, FAMILY 
                     AND MEDICAL LEAVE ACT

    Ms. Schroeder. Thank you very much, Congresswoman Woolsey, 
and this wonderful panel.
    I really, really appreciate the time and the effort 
because, as we all know, employment practices in the U.S. have 
really not kept pace with most of the rest of the developed 
world, and as the congresswoman said, I am kind of the mother 
of the Family and Medical Leave Act, and it did take 9 years to 
get this thing into law. So it was a very frustrating and long 
period.
    In 1988, after it had been introduced for 3 years, I looked 
insanely at running for president, and when I came to my senses 
and got out, my good friends said to me, ``But we have lost our 
forum for talking about family issues,'' and so Gary David 
Goldberg, who was then writing ``Family Ties,'' and Dr. T. 
Berry Brazelton, who is the famous pediatrician from Harvard, 
and Dr. Diana Meehan and I decided to do this family tour, and 
we basically went to the South to talk about family leave.
    We went to the primary states in the South because that is 
where we were having the most trouble trying to get co-
sponsors, and I must say, Congressman Wilson, we were so 
impressed with your state because, in your state, yours was the 
only state in the South where the Chamber of Commerce backed 
us. They were very, very pro, and they were very welcoming.
    In all of these states, we outdrew all the politicians. 
People came out in droves, and the stories we heard you all 
know. It was very tragic. This choosing between your job or 
your family was a very tough thing.
    The other thing we know was there was so much research done 
on bonding, how important those early bonding years were, and 
there was research even showing that many criminals had not had 
proper bonding. So this was important.
    Now I had started out wanting 18 months. We got 12. I 
wanted companies with 25 or more being covered, but we got 50 
and so forth and so on. But we made tremendous progress, and we 
came back, and we even had--at that point, the first George 
Bush was running for president, and even he said that he would 
back family leave because we had made so much noise in so many 
states. We were very disappointed when he vetoed it after we 
passed it the first time, and then he vetoed it again, and it 
took until 1993 when we finally were able to pass it and get it 
signed into law.
    It has been very depressing to see for these 15 years we 
really have not made much progress until all of you, thank 
goodness, did something for our military families, which was 
long, long overdue, and now we see a few states, like--
Congressman Payne, the State of New Jersey has done a wonderful 
job of passing paid family leave, and I think that is now been 
signed into law or is about to be. So that is very, very 
exciting.
    But it really seems to me that the time has come where we 
need to look at paid leave because so many families cannot deal 
with this, and, Congressman, you were talking about so many 
companies are--people who work in smaller places cannot use 
this. So we really need to investigate how can we move forward 
on this.
    This is a very, very important thing, and people in other 
countries have done it long ago. We still are doing less than 
any other country, any other developed country in this area. So 
I really thank you so much, Congresswoman, for starting these 
hearings because I think after 15 years, it really is time to 
look at this and say, ``Can't we go forward? Can't we build on 
this?''
    After we passed this, for 2 years, we went around the 
country to have hearings to see if anybody had been severely 
impacted because the horror stories we heard before we passed 
this were like all industry was going to stop in America, and, 
happily, we did not find that kind of impact. Instead, we found 
people were very happy.
    So thank you very much. I will be quiet and move along.
    [The statement of Ms. Schroeder follows:]

  Prepared Statement of Hon. Patricia S. Schroeder, President & Chief 
Executive Officer, Association of American Publishers, Former Member of 
                                Congress

    American families will tell you employment policies have not kept 
pace with the changing needs of the workforce in this country.
    I was proud to be the ``mother'' of the Family Medical Leave Act 
(FMLA). It took nine months to deliver each of my children and nine 
years to deliver FMLA! I had worked on the bill for several years and 
was amazed by what a hard sell it was. Pediatricians everywhere felt it 
was so important for mothers and fathers to have time to bond with new 
borns. Bonding wasn't just something NICE to do; there were volumes of 
research proving it essential to healthy development. Meanwhile, the 
business community continued to be able to say to workers, ``Choose, 
it's your family or your job;'' or ``It's your baby or your job.'' This 
seemed very barbaric.
    In 1988, after coming to my senses and getting out of the 
Presidential race, I looked for another way to have some impact in the 
campaign for work and family issues. My friends, who had helped me with 
FMLA, Dr. T. Berry Brazelton, America's favorite pediatrician; Gary 
David Goldberg, creator of the television show Family Ties; and Diana 
Meehan, a distinguished writer and thinker, said they would join me in 
a ``Great American Family Tour.'' The tour would go to early primary 
states, hold meetings and ask people to get the candidates to commit to 
support the FMLA and other badly needed family legislation. We got 
larger crowds than the candidates wherever we went.
    We were so excited when candidate George H.W. Bush said he 
supported FMLA during the campaign and were shocked when he vetoed it 
after its passage saying, he was for it in concept but not in the law! 
So much for campaign promises. FMLA was the first major bill signed by 
President Clinton in 1993. He had been the Governor of Arkansas during 
our tour, joined us, and was fully ready to go! Every developed country 
had a stronger bill than we passed, but at least the United States was 
no longer a zero.
    When we passed it, there was huge opposition. * * * many said they 
didn't want the Federal Government mandating benefits, employees should 
have the ``freedom'' to negotiate their own benefits! Others did not 
want men included; they wanted maternity leave. However, there were 
legal cases saying such benefits should be extended to both men and 
women.
    Here is what the amended bill said:
    Any company with less than 50 employees is not covered. An employee 
must work a year before being eligible. Family leave was reduced from 
18 weeks to 12 weeks. Medical leave was reduced from 26 weeks to 12 
weeks.
    Still the business community howled. There was a Commission that 
studied the impact of FMLA on American businesses for two years after 
its enactment. The impact was very slight. Unlike a heart attack or 
major illness, employers could plan for when an employee with a new 
baby would be on leave. There are many companies that provide qualified 
employees on a short-term basis to fill in. Obviously, families that 
used it loved it. However, many families could not use it because they 
either worked in smaller companies that weren't covered or they could 
not afford to miss the paychecks.
    Here we are in 2008, fifteen years later, and we haven't made much 
progress. I do want to compliment you for including in the Defense 
Authorization bill an extension of leave to six months for families of 
workers who have a seriously injured service member and 12 weeks leave 
if it is needed because of the deployment or impending deployment of a 
family member. Thanks so much for that much needed coverage, but we 
still need to consider paid leave and of course many of us are very 
worried that the Department of Labor will propose new regulations, 
making it more difficult for workers to access the FMLA leave.
    It seems to me we should be continuing to catch up with the rest of 
the world. Juggling work and family is going to be essential for almost 
every American family in the global economy we live in. The Norman 
Rockwell image of full-time caregiver at home is history. FMLA should 
be expanded to provide coverage to all Americans and Congress should 
try and figure out how to move to paid leave.
    Thank you.
                                 ______
                                 
    Chairwoman Woolsey. Thank you.
    Ms. Lasco?

             STATEMENT OF CHANTE LASCO, NEW MOTHER

    Ms. Lasco. Thank you for having me. I am humbled to be here 
and also to follow Representative Schroeder. But, basically, I 
have more of a personal story.
    On July 22 of 2007, I gave birth to my first child, Cooper, 
who all of you unfortunately heard this morning, but, as with 
millions of new parents before me, my life and my perspective 
were forever altered by having my first child. And one of the 
first challenges I had to face was how to find this balance, 
how to spend as much time as I could with him, before going 
back to work.
    Fortunately, I do work for our county, so I qualified to 
take leave under the Family and Medical Leave Act. So, when I 
first found out I was pregnant and inquired about taking that 
leave, I was frankly surprised to find out that it did not 
require any payment whatsoever, and all of my friends who had 
not had children yet did not realize that either. So we were 
all surprised by that, actually.
    And then a lot of my friends said, ``Well, you know, you 
work for a government agency.'' You would think maybe a 
government agency would be proactive and be able to serve as a 
role model for the private sector, but that did not happen 
either.
    I was permitted to use my annual leave and my sick leave 
after getting a note from my doctor that I needed time to 
recuperate from birth, which I thought was somewhat obvious.
    But, in any case, I was able to get some of my 12 weeks of 
leave paid, but, of course, 9 weeks were not paid, and, during 
that time, I still had to pay all of my bills, including my 
huge student loans from law school, on top of all of the new 
baby-related costs.
    In the end, I was able to take the full 12 weeks, largely 
due to a very tragic event in my life, which was the death of 
my mother from cancer. My mother died 2 days after Christmas in 
2006. This was about a month after I told her I was pregnant. 
She was very excited about my grandson--her grandson coming on 
the way, and I thought that she might actually hang in there 
long enough to meet him, but that was not to be.
    However, after she passed away, I was very surprised to 
discover she had a small life insurance policy, and I was one 
of the beneficiaries, along with my brother, and it was this 
insurance policy that made it possible for me to stay home and 
use my leave. So I realized that was the last gift, and the 
best gift I ever got from her.
    Yet the 12 weeks did go by really fast, when you are trying 
to get to know your own child, nursing him, holding him, 
rocking him to sleep, and trying to figure out what soothes 
him, what kind of person he is going to be. All of that went by 
extremely fast, and the first day I had to go back to work, I 
cried three times on my way to work.
    I also discovered how difficult it was and incredibly 
expensive it was to find child care for a 12-week-old baby. 
That is almost impossible to find and to afford. Therefore, my 
husband, who is a nurse, who is with me here today, quit his 
job. He stays home with our child during the week while I am at 
work, and he works weekends in a new position, and then I stay 
home alone with the child during the weekends, which is very 
difficult on us as a family, but it is the way that we have 
been able to make it work.
    Adding to all of these difficulties is the fact that I was 
very aware of all the health benefits of nursing my child. 
Research suggests that it not only leads to fewer colds and ear 
infections, which, frankly, lowers parent absenteeism at work, 
but it could prevent everything from obesity to leukemia. These 
are some of the things that you hear.
    So I wanted my son to get all these benefits, but having to 
go back to work at just 12 weeks made that difficult, so I have 
been balancing that and I am still balancing that. I am a 
prosecutor, and I find myself running back during a recess from 
court to pump or nurse my son in the office, and running back 
to the courtroom. But I am very lucky because I am in a 
position where I am able to do that, and I know many women who 
are waitresses and in positions where that is just physically 
impossible.
    So, in conclusion, I just want to say, despite all the 
financial, emotional, logistical challenges I have faced, I 
have really benefited from the FMLA and am very grateful to the 
honorable Pat Schroeder and all other Congress members who 
passed this very important protection.
    I was actually a little reluctant to come forward today 
because I felt that I was very fortunate to be able to work 
this out the way that I did and that there are many other 
workers who are in a much tougher position, people who are 
working part-time, who, therefore, do not qualify or who work 
for smaller companies, or who just simply cannot afford to take 
any kind of unpaid leave.
    I would also just like to say that, of course, if I had the 
choice, I would much rather have my mom here, I would much 
rather have had her be able to meet my son, but I also 
recognize what a gift it was that I was able to afford to take 
my leave and that she really made that possible for me.
    She was a single mom. She worked two jobs, and she put 
herself through school to become a psychologist in order to 
better all of our futures. So she really--that was her legacy, 
and I still do not know what kind of legacy I will leave for my 
own son, but I just want to say that all of you involved in 
creating the FMLA and all of those who may seek to change it, 
you all have the possibility of leaving a legacy as well, and I 
challenge you to create an even better legacy for the FMLA.
    Thank you for your time and attention.
    [The statement of Ms. Lasco follows:]

             Prepared Statement of Chante Lasco, New Mother

    On July 22, 2007, I gave birth to my first child and, as with 
millions of new parents before me, my life and my perspective were 
forever altered. One of the first challenges I had to face as a new 
mother was how to make it possible to spend as much time as I could 
with my newborn son. Fortunately for me, I met the requirements to take 
time off from my job as a prosecutor under the Family Medical Leave 
Act.
    When I first found out I was pregnant and inquired about taking 
leave, I was surprised to learn that such leave is totally unpaid. All 
of my friends who hadn't had children were equally stunned as they, 
too, assumed at least some of this leave would be paid. Additionally, 
because I work for the government, I had thought that perhaps 
government agencies would offer enhanced benefits to serve as a role 
model for the private sector, but I was wrong.
    I was permitted to use annual leave and after getting a note from 
my doctor stating that I needed time to recuperate from giving birth 
(which seems like it should be obvious) I was able to use my accrued 
sick time. So I managed to get a few of the twelve weeks off paid but 
while I was not being paid, of course, the mortgage still had to be 
paid, the utilities still had to be paid, and my huge student loans 
from law school still had to be paid, on top of all the new baby-
related costs. Still, I was able to take the full twelve weeks largely 
due to a tragic event that occurred during my pregnancy--the death of 
my mother from cancer.
    My mother died two days after Christmas 2006, about a month after I 
told her I was pregnant. She was very excited about her grandchild on 
the way. I thought she might hang in there long enough to meet her 
grandson but it was not to be. Much to my surprise, I learned after her 
death that she had a small life insurance policy for which I was one of 
the beneficiaries. I soon realized that this insurance money was the 
last and best gift I ever received from my mother because it was what 
made it possible for me to stay home with my baby.
    Still, twelve weeks goes by fast when you are getting to know to 
your own child. Twelve weeks of nursing him, holding him, rocking him 
to sleep. Twelve weeks of changing him, bathing him, and learning what 
soothes him. All too soon, twelve weeks had passed and it was time to 
leave my tiny baby and return to work. I cried three times during my 
first day back. To make matters worse, I soon discovered that finding 
child care for a twelve-week-old baby was exceedingly difficult and 
incredibly expensive. Thus, my husband--a nurse--left his job and took 
a weekend job so we can take turns caring for our child. My husband 
cares for our baby while I am at work during the week and I care for 
him alone on the weekends while he works twelve-hour shifts. This means 
we do not have to pay for child care but it also means we rarely see 
each other and seldom are together as a whole family.
    Adding to the difficulties of returning to work is the fact that my 
baby depends on me for sustenance. The health benefits of breast milk 
are astounding, with research suggesting it not only means fewer colds 
and ear infections (and thus less parent absenteeism at work) but may 
help prevent everything from obesity and diabetes to leukemia. Trying 
to ensure my son gets these benefits while at the same time having to 
return to work after twelve weeks has been an immense challenge. I have 
found myself struggling to be both a full-time prosecutor and a nursing 
mom, running to my office during recesses to pump breast milk and 
having my husband drive my son to my office each day to nurse at lunch. 
Still, I know that I am one of the lucky ones. After all, I not only 
had twelve weeks to nurse my son at home, I also have an office to 
nurse and pump in, unlike some other women I know.
    In conclusion, despite these financial, emotional, and logistical 
challenges, I have benefited from the Family Medical Leave Act and I am 
grateful to the Honorable Pat Schroeder and other Congress members who 
created this incredibly important protection. To be honest, I was a bit 
reluctant to come speak to you today because I know that I am one of 
the lucky ones. I can't help but think about all the other workers who 
can not benefit from this law. Those who work two or three part time 
jobs and aren't lucky enough to be full time. Or those who simply 
cannot afford to take unpaid leave. Despite how crucial the FMLA is, it 
still does not go far enough to help enough people.
    In the end, I want to say that if I'd had a choice, I would rather 
my Mom had had a chance to meet my son and to hold him in her arms 
rather than living off of her life insurance policy during my family 
leave. But sometimes life is about doing the best you can with the 
limited choices you are given and seeing a gift for what it is. So I am 
grateful for every day of those twelve weeks with my son and I thank 
those of you who created the FMLA. But I also thank my Mom for making 
it possible to actually use it. I know she'd be proud of me speaking 
here today. She was a single Mom who worked two jobs and put herself 
through school to become a psychologist. Her legacy was one of hard 
work and struggle and I now know how hard it must have been for her to 
leave us with babysitters and go to grueling jobs. And yet she fought 
to improve her life and to help me get where I am today. That was her 
legacy. I don't yet know what kind of legacy I will leave for my own 
child: our story is just beginning. Those of you involved in creating, 
protecting, or even seeking to weaken the FMLA will leave a legacy, 
too, and I challenge you to use the Family Medical Leave Act to instead 
create an even better legacy for the future. Thank you for your time 
and attention.
                                 ______
                                 
    Chairwoman Woolsey. Thank you.
    We have three votes. If the three of you can wait for us--I 
mean all of you--we will be back as soon as the third vote is 
over, which means it could be 20, 25 minutes.
    [Recess.]
    Chairwoman Woolsey. We will call this hearing back to 
order, and what you have to know is--we are sorry it took so 
long--we swore in a new Member of Congress from the State of 
California, Jackie Speier, this morning, but that all takes a 
long time. Just so you know how it works, they put that in 
between a vote, the swearing-in, then two more votes, so, 
indeed, we stay there instead of running back and forth.
    So, Jennifer Hunt, we are glad to hear from you.

         STATEMENT OF JENNIFER HUNT, AIRLINE ATTENDANT

    Ms. Hunt. Thank you, Chairwoman, for holding this hearing 
and inviting me to testify today.
    My name is Jennifer----
    Chairwoman Woolsey. I do not think you have your microphone 
on.
    Ms. Hunt. I will scoot a little closer.
    My name is Jennifer Hunt, and I am a 19-year full-time 
flight attendant with US Airways currently based at Ronald 
Reagan Washington National Airport and a member of the 
Association of Flight Attendants. I am the wife of John Calley, 
a Blackhawk helicopter pilot with the Virginia Army National 
Guard and an Iraq war veteran who completed a 17 month 
deployment to Iraq in February of 2007. John is a commercial 
pilot, and we have two wonderful young children.
    As a family where both my husband and I work full-time, I 
am here to tell you that the Family and Medical Leave Act has 
been a great benefit and has provided peace for many.
    When Congress passed the Family and Medical Leave Act in 
1993, the intent was to provide an employee 12 weeks of unpaid 
leave if they worked a minimum of 60 percent of a full-time 
schedule. When developing this threshold, Congress looked at 
the traditional 40-hour work week which comes to 1,250 hours.
    However, I and thousands of other full-time working flight 
attendants in this country have unfortunately been unable to 
take full advantage of this benefit. This problem arises out of 
the fact that flight crew pay hours are calculated in a very 
unique way. Flight attendants are only paid for their flight 
hours, which is basically the time from when the door of the 
aircraft closes until arrival at the destination airport.
    On the average, when I fly a trip, I am gone 60 to 65 
hours, away from base, but I yield about 18 paid flight hours. 
Your average flight attendant in the industry today works 
approximately 80 flight hours a month, which translates to 
approximately 20 days of flying. Again, let me remind you those 
80 hours I referenced are only flight hours. They do not 
include all the time and service to the company performing 
work.
    As you can see, the calculation of hours for flight crews 
in the airline industry is very unique. Basing a threshold of 
1,250 hours to our uncommon situation is not relevant. My own 
situation will help shed some light on this problem.
    After the birth of our second child and the completion of 
my husband's deployment to Iraq, I returned to full-time 
employment as a flight attendant with US Airways, arranging it 
so that I could be home on the days that my husband worked his 
schedule in order to care for our two small children.
    On December 27, 2007, my husband was diagnosed with cancer. 
While exploring the various treatment options available to him 
and preparing for imminent surgery, I immediately applied for 
the Family and Medical Leave. Because of the way our hours are 
calculated, I did not meet the 1,250-hour requirement for FMLA.
    I should point out that I was working at US Airways flying 
75 flight hours a month. This is above the 73 flight hours a 
month that US Airways defines as a full-time schedule.
    While I was unable to qualify for FMLA, I did however 
qualify for Personal Care Leave, which is something my union, 
the Association of Flight Attendants, had negotiated with our 
company management. Negotiating a more meaningful FMLA policy 
is something that we at US Airways and many other flight 
attendants at other airlines have had to do.
    The unfortunate thing with our company-based personal care 
leave is that it must be used in a 5-day block. The provision 
within FMLA that would have allowed me to take intermittent 
leave at various times was not an option for me and my family. 
Instead of missing 1 day, for instance, to take my husband to 
medical appointments, I would be forced to take 5 days off, a 
waste of productivity for the company and 5 days of no pay for 
my family at the worst possible moment.
    I did not want, nor was I willing to take, 5 days of unpaid 
leave every time I needed to utilize my leave. In the end, I 
was able, due to the flexibility that my seniority provides, to 
adjust my schedule so as not to use the personal care leave and 
avoid such a prolonged absence from work.
    As my husband's surgery approached in February of 2008, I 
was forced to juggle my flying schedule to attend his surgery 
and post-operative care. Very soon after my husband's release 
from the hospital, I had to return to work. I was incredibly 
fortunate that I could rely on friends and family to assist in 
the care of my husband following his surgery and the care of 
our two children. If I did use the personal care leave, I would 
have unfortunately missed 5 full days of paid flying, and I 
could not afford that option while my husband was recovering.
    Madam Chair, this denial of FMLA benefits to flight crew is 
frustrating because the original authors of FMLA were clear in 
their intentions that the new law must cover flight crew 
members who work full-time schedules. This issue was addressed 
on the House floor, and the bill authors made clear that flight 
crews were not meant to be held to a hard number for 
qualification.
    So we are frustrated that we have been forced to bargain 
for a right that every American is afforded under the law. What 
is most frustrating is the fact that we were intended to be 
covered by the law from the very beginning. Congress must 
correct this oversight and get back to the original intent of 
the law.
    H.R. 2744, a bipartisan bill introduced by Representative 
Tim Bishop and supported by a majority of the House of 
Representatives, will provide the necessary clarification to 
the Family and Medical Leave Act that is so needed. This bill 
states that airline flight crews will be considered qualified 
for FMLA if they fulfill or have been paid for 60 percent of 
their airline's full-time schedule.
    The good news for me and my family is that my husband is 
expected to make a full recovery. However, tens of thousands of 
other flight attendants are not so lucky. Many are denied FMLA 
benefits despite the fact that the law was intended to cover 
flight crew members.
    The Family and Medical Leave Act has helped millions of 
employees to remain with their employer, but still meet the 
needs of their family. I urge you to pass H.R. 2744 in order to 
correct this oversight and get back to what Congress originally 
intended--that I and the over 90,000 flight attendants in this 
country will be able to have the peace of mind that the Family 
and Medical Leave Act is intended to provide.
    [The statement of Ms. Hunt follows:]

         Prepared Statement of Jennifer Hunt, Flight Attendant

    Thank you, Chairwoman Woolsey and the distinguished members of this 
panel. I very much appreciate you holding this hearing and inviting me 
to testify today. My name is Jennifer Hunt and I am a 19 year full time 
flight attendant with US Airways currently based at Ronald Reagan 
Washington National Airport and a member of the Association of Flight 
Attendants. I am the wife of John Calley, a Blackhawk helicopter pilot 
with the Virginia Army National Guard and an Iraq war veteran who 
completed a 15 month deployment to Iraq in February of 2007. John is a 
commercial pilot with Comair and we have two wonderful young children.
    As a family where both my husband and I work full-time, I'm here to 
tell you that the Family and Medical Leave Act has been a great benefit 
for millions of American families since it's enactment in 1993. 
Allowing an individual to take up to 12 weeks of unpaid leave in order 
to care for themselves or a family member during an illness or injury, 
knowing that they will have a job to return to, has provided peace of 
mind for many.
    However, I and thousands of other full time, working flight 
attendants in this country have unfortunately been unable to take full 
advantage of this benefit. This problem arises out of the fact that our 
pay hours are calculated in a very unique way for airline flight 
crews--flight attendants and pilots--than are those in other 
industries. Our unique situation demonstrates that one size does not 
fit all.
    When Congress passed the Family and Medical Leave Act in 1993, the 
intent was to provide an employee 12 weeks of unpaid leave if they 
worked a minimum of 60% of a full time schedule. When developing this 
threshold, Congress looked at the traditional 40 hour work week as 
defined by the Fair Labor Standards Act: 60% of a full time schedule, 
based on the ``traditional'' 40 hour work week over a year is 
approximately 1,250 hours. So, as the law was written, someone has to 
have worked 1,250 hours in a 12 month period.
    The problem for flight attendants and pilots is that, as I stated 
previously, the timekeeping methods and calculation of paid hours are 
very unique in the airline industry. For example, we use three 
different types of hours to classify our time spent in the employ of 
the airline.
    The first type of hours are ``flight hours.'' This is basically the 
time from when the door of the aircraft closes and it starts to move 
until the moment the aircraft comes to a stop at the arrival airport 
and the deplaning door opens. These flight hours are time for which we 
receive our hourly rate of pay. Our pre-flight safety checks, boarding 
and deplaning time on each and every flight is unpaid time, yet we are 
still on duty with the company.
    The second type of hours, time spent performing duties such as 
those I just mentioned, as well as time on the ground in between 
flights, is referred to as ``duty hours''. Duty time usually begins 
approximately 1 hour before the first scheduled flight of the day up 
until approximately fifteen to thirty minutes after the last flight of 
the day. Again, flight attendants do not receive an hourly rate of pay 
for these working hours.
    The third category of hours is called ``time away from base''. 
These hours combine all the hours that we spend away from the airport 
in which we are based. Part of this calculation is the time spent in 
hotels away from home and family. For example, I am based at Washington 
Reagan Airport. I consistently work trips that mean I am away from 
Reagan National for up to 4 days, working flights to various cities 
across our country. The hours I spend away from home, at the request of 
the company, are defined as ``time away from base'' hours and the 
significant majority of those hours are unpaid, despite the fact that I 
am on duty and available for duty in service to my company. During the 
majority of these hours, I am governed by--and must adhere to--FAA 
regulations.
    Your average flight attendant in the industry today works 
approximately 80 flight hours a month, which translates to 
approximately 20 days of flying. Again, let me remind you those 80 
flight hours I reference are only flight hours. They do not include all 
the time spent in service to the company performing work.
    As you can see, the calculation of hours for flight crews in the 
airline industry is very unique. Basing a threshold of 1,250 hours to 
our unique situation is not relevant. It is simply like comparing 
apples to oranges and does not adequately reflect the reality of work 
for airline flight crews.
    My own situation will help shed some light on the problem. After 
the birth of our second child and the completion of my husband's 15 
month deployment to Iraq, I returned to full time employment as a 
flight attendant with US Airways. I continued to work a full time 
schedule upon my return, arranging it so that I could be home on the 
days that my husband worked his schedule in order to care for our two 
small children.
    On December 27th, 2007 my husband was diagnosed with prostate 
cancer. While exploring the various treatment options available to him 
and preparing for a potential surgery, I immediately applied for Family 
and Medical Leave. Because of this unique way in which our hours are 
calculated, I did not meet the 1250 hour requirement for FMLA. I should 
point out that I was working a full time schedule at US Airways flying 
75 flight hours a month. This is above the 73 hours a month that US 
Airways defines as a full time schedule.
    While I was unable to qualify for FMLA, I did however qualify for 
Personal Care Leave which is something my union, the Association of 
Flight Attendants, had negotiated with our company management. 
Negotiating a more meaningful FMLA policy is something that we at US 
Airways and many other flight attendants at other airlines have had to 
do. Even the companies over the years have recognized the fact that the 
majority of flight attendants would not qualify for FMLA using the 
1,250 hour threshold. They themselves have recognized that the 1,250 
hours is not translatable for the unique time keeping methods of our 
industry.
    The unfortunate thing with our company-provided Personal Care Leave 
is that it must be used in a 5 day block. The provision within FMLA 
that would have allowed me to take intermittent leave at various times 
was not an option for me and my family. Instead of missing one day, for 
instance, to take my husband to medical appointments, I would be forced 
to take 5 days off, a waste of productivity for the company and 5 days 
of unpaid days for my family at the worst possible moment.
    I did not want, nor was I willing to take, 5 days of unpaid leave 
every time I needed to utilize my leave. In the end I was able, due to 
the flexibility that my seniority provides, to adjust my schedule so as 
not to use the Personal Care Leave and avoid such a prolonged absence 
from work.
    As my husband's surgery approached in February of 2008 I was forced 
to again juggle my flying schedule to attend his surgery and post-
operative care. Immediately upon my husband's release from the 
hospital, I had to return to work. I was incredibly fortunate that I 
could rely on friends and family to assist in the care of my husband 
following his surgery and the care of our two children. If I did use 
the Personal Care Leave, I would have unfortunately missed five full 
days of paid flying time and could not afford that option while my 
husband was out of work during his recovery process.
    While I was able to adjust my schedule to attend to my family's 
needs during this time, approximately 25% of the flight attendant 
population is on what is called ``reserve'' status. For reserve flight 
attendants, FMLA benefits are out-of-reach and virtually impossible to 
obtain. Reserve flight attendants are crewmembers that are on a ``on 
call'' status to staff flights during irregular aircraft operations or 
in case of crewmembers who become ill during their flight assignments. 
Reserve flight attendants can be ``on call'' up to 24 hours a day for 
approximately 20--21 days a month. Reserve flight attendants can 
receive a phone call from the company at any time during their on-call 
timeframe. Upon receiving the phone call to report to work, flight 
attendants have between 1--2 hours to be at the airport ready to work 
the required flight. Reserve flight attendants are truly tied to their 
phones and waiting for calls. They do not have the flexibility while 
``on call'' to get a second job to supplement their income. They must 
be ready and able to head to the airport at a moments notice. If they 
have children, they must have childcare ready to go at a moments 
notice.
    Reserve flight attendants are classified and treated by the 
airlines as full time employees, as airline management itself 
recognizes that reserve flight attendants are technically on duty to 
the airline during their reserve time and must abide by all Federal 
Aviation Regulations governing flight attendants during that reserve 
time. As part of the recognition that they are full time employees, the 
airlines guarantee that those flight attendants will at least receive a 
payment for a minimum number of flight hours a month.
    For example, a reserve flight attendant with US Airways is 
guaranteed to receive payment for 73 flight hours a month for their 
time commitment to the company during their approximately 20 days of 
being ``on call.''. The flight attendant could very well be called in 
to fly more than those 73 flight hours in a given month, and they will 
receive payment for their actual hours, but because of their time 
commitment to the company, they are guaranteed at a minimum to be paid 
73 flight hours.
    The unfortunate thing for these reserve flight attendants is that 
for FMLA qualification, only the time that they are called in to work a 
flight counts towards reaching their 1,250 hour threshold. It is 
virtually impossible for reserve fight attendants to qualify for FMLA. 
As they are the most junior flight attendants at any base, they need 
the flexibility that Family and Medical Leave provides.
    Madame Chair, this denial of FMLA benefits to flight crew is 
frustrating because the original authors of FMLA were clear in their 
intentions that the new law must cover flight crewmembers who work full 
time schedules. This issue came up on the House floor on May 10, 1990. 
Congressman Norman Minetta asked Congressman Clay, one of the bill's 
authors, about this situation faced by flight attendants and pilots and 
the unique way their hours are calculated. Mr. Clay's response was 
clear. He said:
    ``We certainly do not intend that dedicated workers in unique 
circumstances should be excluded from the bill's protection simply 
because of their industry's unusual time-keeping methods. Flight 
attendants and pilots who work the number of hours constituting half-
time (eventually increased to 60%) employment during the previous 12 
months as defined either by a collective bargaining agreement or by 
industry standard are fully entitled to family and medical leave under 
this bill.''
    Furthermore, the Senate report language accompanying the final 
bill, states clearly that the ``minimum hours of service requirement is 
meant to be construed broadly * * *''
    So, we are frustrated that we have been forced to bargain for a 
right that every American is afforded under the law. What is most 
frustrating, is the fact that that we were intended to be covered by 
the law from the very beginning. Congress must correct this oversight 
and get back to the original intent of the law.
    HR 2744, a bipartisan bill introduced by Representative Tim Bishop 
will provide the necessary technical correction to the Family and 
Medical Leave Act that is so needed. This bill states that airline 
flight crews will be considered qualified for FMLA if they fulfilled or 
have been paid for 60 percent of their airline's full time schedule. 
Although a full time schedule varies by carrier, each carrier has 
established its own definition of what constitutes a full time 
schedule. That full time schedule is established through a monthly 
``guarantee'' or monthly ``minimum''.
    The term is a standard in the airline industry and is used by both 
unionized and non-unionized airlines. The employer is guaranteeing that 
a full-time flight attendant or pilot will get--at a minimum--a set 
number of flight hours scheduled in a month.
    For example, the monthly guaranteed minimum flight hours at US 
Airways is 73 flight hours. US Airways is basically saying that each 
flight attendant with the airline will get scheduled for 73 flight 
hours that month. This constitutes a full-time schedule. A flight 
attendant may subsequently schedule themselves to work for less than 
the 73 flight hour threshold and get paid fewer hours, or a flight 
attendant may choose to work 95 flight hours in a month and gets paid 
for 95 hours. But all flight attendants at US Airways are promised by 
the company that as a flight attendant--as a full time employee--they 
will get scheduled for 73 flight hours.
    The concept of a guarantee is an industry standard term. However, 
there is no one guarantee that is applied uniformly throughout the 
industry as monthly guarantees vary from airline to airline. The 
employing airline is allowed to develop the monthly guarantee due to 
the unique nature of each individual airline's scheduling needs. This 
allows flexibility for the employer to determine what that specific 
airline's full time schedule is. The ``full time'' schedule at an 
airline may be changed from year to year due to the changing nature and 
uniqueness of each airline's operation and needs. Again, this provides 
the employer flexibility to increase their ``full time'' schedule as 
needs and demands may dictate.
    The good news is that my husband is expected to make a full 
recovery. However, tens of thousands of other flight attendants are not 
so lucky. Many are denied FMLA benefits despite the fact that the law 
was intended to cover flight crew members. The Family and Medical Leave 
Act has helped millions of employees to remain with their employer but 
still meet the needs of their family. I urge you to pass HR 2744 in 
order to correct this oversight and get back to what Congress 
originally intended--that I and the over 90,000 flight attendants in 
this country will be able to have the peace of mind that the Family and 
Medical Leave Act is intended to provide.
                                 ______
                                 
    Chairwoman Woolsey. Thank you very much.
    Ms. Cossette?

  STATEMENT OF BRENDA COSSETTE, ON BEHALF OF THE SOCIETY FOR 
                   HUMAN RESOURCE MANAGEMENT

    Ms. Cossette. Madame Chair Woolsey and distinguished 
members of the subcommittee, my name is Brenda Cossette, and I 
am the director of human resources for the City of Fergus Falls 
in Minnesota. I commend the subcommittee for holding this 
hearing on the Family and Medical Leave Act, and I appreciate 
the opportunity to provide testimony.
    By way of background, I am a certified H.R. professional 
with over 25 years experience in human resource management. In 
my current role, I manage the human resource function for the 
City of Fergus Falls in Minnesota, ensuring compliance with all 
state and federal laws and administering policies and 
procedures, including the Family and Medical Leave Act.
    I appear today on behalf of the Society for Human Resource 
Management, or SHRM, of which I am a member, and SHRM is the 
world's largest professional association devoted to human 
resource management, and it is uniquely positioned to provide 
insight on workplace leave policies.
    Please note that I do not sit here before you today as 
merely an H.R. professional, but as an employee who is 
personally benefiting from the act's provisions. I was 
diagnosed with breast cancer in September and have had two 
separate surgeries and have just finished undergoing 
chemotherapy.
    With cancer as a chronic condition, my need to use FMLA 
leave continues on an intermittent basis. The benefits afforded 
under the FMLA allow me to take time off as necessary for my 
treatments and for the often unpredictable complications of 
chemotherapy. The FMLA also allows me to take time off without 
any accompanying stress or anxiety about my absence from the 
workplace.
    Therefore, my perspective upon this issue today is based on 
real experience tempered with an appreciation for the needs and 
concerns of employers.
    Both employers and employees benefit from workplaces that 
foster and support an appropriate balance between work and 
family demands, and the Family and Medical Leave Act was 
premised on this principle. While I believe that H.R. 
professionals work diligently to assist employees in striking 
this balance, after 15 years of experience administering FMLA 
leave, I am confident this important statute is in need of 
modest, yet important fixes to ensure that it serves the best 
interests of both employees and employers.
    Undoubtedly, the Family and Medical Leave Act has helped 
millions of employees and their families. For the most part, 
the family leave portion of the FMLA, which provides up to 12 
weeks of unpaid leave for the birth or adoption of a child, has 
worked as Congress intended, resulting in few challenges for 
either employees or employers.
    Key aspects of the regulation governing the medical leave 
provisions, however, which provide 12 weeks of unpaid leave for 
an employee to care for a close family member with a serious 
health condition or to recover from their own serious illness, 
have drifted far from the original intent of the act, creating 
challenges both for the employers and employees.
    H.R. professionals have struggled to interpret various 
provisions of the FMLA, including the definition of a serious 
health condition, intermittent leave, and medical 
certification.
    Madam Chair, challenges with FMLA implementation have been 
well documented over the last several years and, as such, SHRM 
believes policymakers should address the underlying problems 
both employers and employees encounter with the FMLA. To this 
end, SHRM was pleased with the recent FMLA proposal by the 
Department of Labor.
    While a number of the changes proposed by the DOL will 
certainly improve FMLA implementation, particularly the medical 
certification process, the society believes the proposal fell 
short in two key areas: The proposed regulation fails to 
significantly improve the definition of a serious health 
condition, and there still are no meaningful tools available 
for employers to effectively manage misuse of unscheduled 
intermittent leave. These are important issues that are 
fundamental to effective FMLA administration and, as such, 
Congress should strongly consider policy options to remedy 
these challenges.
    SHRM shares Congress's interest in providing families 
additional work flexibility, but we are concerned about 
proposals to expand the FMLA Act given the problems 
administering current FMLA leave. While well intentioned, 
proposals that build on a flawed FMLA framework will only 
exacerbate the significant challenges both employers and 
employees currently encounter.
    SHRM also has serious concerns about proposals that mandate 
paid leave. While many employers offer generous voluntary paid 
leave benefits to better assist employees in balancing work and 
personal needs, it is important to remember that paid leave 
benefits are only one element of the employee's total 
compensation package, and employers have a finite pool of 
compensation dollars.
    Employers, not the federal government, are best situated to 
know the benefit and compensation needs of their employees and, 
as such, a one-size-fits-all paid leave mandate really 
restricts an employer's flexibility in designing and 
implementing employee benefit plans, which oftentimes will work 
against employees.
    Therefore, SHRM respectfully requests that Congress fix the 
documented shortfalls of the FMLA before considering additional 
leave mandates that curtail an employer's flexibility.
    In conclusion, SHRM does applaud the subcommittee's 
examination of the FMLA to guage whether this leave law is 
meeting the needs of both employees and employers and 
appreciates the opportunity to provide this testimony on this 
important leave statute. The society looks forward to working 
with the subcommittee to craft practical workplace flexibility 
policies that meet the needs of employees, families, and 
employers.
    And thank you again for inviting me here today, and I look 
forward to answering your questions.
    [The statement of Ms. Cossette follows:]

  Prepared Statement of Brenda Cossette, Human Resources Director, on 
          Behalf of the Society for Human Resource Management

    Chairwoman Woolsey, Ranking Member Wilson and distinguished members 
of the Subcommittee, my name is Brenda Cossette and I am the Human 
Resources Director for the City of Fergus Falls, Minnesota. I commend 
the subcommittee for holding this hearing on the Family and Medical 
Leave Act (FMLA) and I appreciate the opportunity to provide testimony 
to you today.
    By way of background, I am a certified senior professional in human 
resources with over 25 years experience in human resource management. 
My experience includes work in government, manufacturing, banking, 
wholesale/retail grocery as well as health care. In my current role, I 
manage the Human Resource function for the City of Fergus Falls, 
Minnesota, ensuring compliance with state and federal laws, negotiating 
and administering four labor contracts as well as establishing and 
administering internal policies and procedures, including the Family 
and Medical Leave Act.
    I appear today on behalf of the Society for Human Resource 
Management (SHRM), of which I am a member. SHRM is the world's largest 
professional association devoted to human resource management. Our 
mission is to serve the needs of HR professionals by providing the most 
current and comprehensive resources, and to advance the profession by 
promoting HR's essential, strategic role. Founded in 1948, SHRM 
represents more than 225,000 individual members in over 125 countries, 
and has a network of more than 575 affiliated chapters in the United 
States, as well as offices in China and India.
    It is important for you to know that do I not sit before you today 
as merely an HR professional who has administered the FMLA since it was 
enacted in 1993, but as an employee who is personally benefited from 
the Act's provisions. I have been diagnosed with breast cancer, have 
had two separate surgeries, and am currently undergoing chemotherapy. 
With cancer as a chronic condition, my need to use FMLA leave continues 
on an intermittent basis. The benefits afforded under the FMLA allow me 
to take time off as necessary for my treatments and for the often 
unpredictable complications of chemotherapy. The FMLA allows me to take 
time off without any accompanying stress or anxiety about my absence 
from the workplace.
    Given my personal familiarity with the FMLA, my perspective on the 
issues before us today is based on real experience, tempered with an 
appreciation for the needs and concerns of employers in my home state 
of Minnesota. Thank you for giving me an opportunity to share my 
personal and professional experiences with you.
    In addition, SHRM is uniquely positioned to provide insight on 
workplace leave policies. The Society's membership is comprised of HR 
professionals who are responsible for administering their employers' 
benefit policies, including paid time-off programs as well as FMLA 
leave. On a daily basis, HR professionals must determine whether an 
employee is entitled to FMLA leave, track an employee's FMLA leave, and 
determine how to maintain a satisfied and productive workforce during 
the employee's FMLA leave-related absences.
FMLA Overview
    Both employers and employees benefit from workplaces that foster 
and support an appropriate balance between work and family demands, and 
the Family and Medical Leave Act was premised on this principle. And 
while I believe that HR professionals work diligently to assist 
employees in striking this balance, after 15 years of experience 
administering FMLA leaves, I am confident this important statute is in 
need of modest, yet important fixes to ensure that it serves the best 
interests of both employees and employers.
Family Leave Working as Congress Intended
    Undoubtedly, the Family and Medical Leave Act has helped millions 
of employees and their families since it's enactment in 1993, and as an 
HR professional, I have personally witnessed employees reap the 
important benefits afforded under this law. For the most part, the 
family leave portion of the FMLA--which provides up to 12 weeks of 
unpaid leave for the birth or adoption of a child--has worked as 
Congress intended, resulting in few challenges for either employers or 
employees. As evidenced in the 2007 SHRM Survey FMLA and Its Impact on 
Organizations, only 13 percent of respondents reported challenges in 
administering FMLA leave for the birth or adoption of a child.
    When my son was born over 23 years ago, I did not have FMLA leave 
protection, which caused me some anxiety as I had a complicated 
delivery and premature infant, requiring me to take three months of 
leave as well as more time to deal with the respiratory complications 
that came with a premature infant. I personally believe that FMLA is a 
wonderful benefit for working men and women who have families, as they 
can take leave for the birth or adoption of a child without angst over 
losing their job or benefits. FMLA leave allows a new parent to take 
time to adapt to their parenting role and bond with their child, and 
this would not be easily done if they had to worry about their job or 
benefits.
Medical Leave Challenges
    Key aspects of the regulations governing the medical leave 
provisions, however, have drifted far from the original intent of the 
Act, creating challenges for both employers and employees. In fact, 47 
percent of SHRM members responding to the 2007 SHRM FMLA Survey 
reported that they have experienced challenges in granting leave for an 
employee's serious health condition as a result of a chronic condition 
(ongoing injuries, ongoing illnesses, and/or non-life threatening 
conditions). HR professionals have struggled to interpret various 
provisions of the FMLA, including the definition of a serious health 
condition, intermittent leave, and medical certifications.
    HR professionals have two primary concerns with the Act's 
regulations: the definitions of ``serious health condition'' and 
``intermittent leave.'' For example, with regard to the definition of 
serious health condition, the Department of Labor (DOL) issued a 
statement in April 1995 advising that conditions such as the common 
cold, the flu, and non-migraine headaches are not serious health 
conditions. The following year, however, the DOL issued a statement 
saying that each of these conditions could be considered a ``serious 
health condition.'' Practically any ailment lasting three calendar days 
and including a doctor's visit, now qualifies as a serious medical 
condition (due to DOL regulations and opinion letters). Although 
Congress intended medical leave under the FMLA to be taken only for 
serious health conditions, SHRM members regularly report that 
individuals use this leave to avoid coming to work even when they are 
not experiencing a serious health condition.
    Furthermore, HR professionals encounter numerous challenges in 
administering unscheduled, intermittent leave. It is often difficult to 
track this type of leave usage, particularly when the employee takes 
FMLA leave in small increments. Unscheduled, intermittent leave also 
poses significant staffing problems for employers. When an employee 
takes leave of this nature, organizations must cover the absent 
employee's workload by reallocating the work to other employees or 
leaving the work unfinished. For example, 88 percent of HR 
professionals responding to the 2007 SHRM FMLA Survey Report indicated 
that during an employee's FMLA leave, their location attends to the 
employee's workload by assigning work temporarily to other employees. 
In most cases, it is not cost-effective to use temporary staff because 
the period to train a temporary employee is sometimes longer than the 
leave itself. Furthermore, employers typically do not receive 
sufficient advance notice regarding an employee's need for FMLA leave, 
thereby making it difficult to obtain temporary help on short notice.
    In addition to staffing problems, ``intermittent leave'' (as 
defined in the FMLA regulations) has resulted in numerous issues 
related to the management of absenteeism in the workplace. The most 
common challenge HR professionals encounter in administering medical 
leave, for example, is instances in which an employee is certified for 
a chronic condition and the health care professional has indicated on 
the FMLA certification form that intermittent leave is needed for the 
employee to seek treatments for the condition. This certification in 
effect grants an employee open-ended leave, allowing leave to be taken 
in unpredictable, unscheduled, small increments of time. The ability of 
employees to take unscheduled intermittent leave in the smallest time 
units that the employer uses, often one-tenth of an hour or six 
minutes, means that employees can rely on this provision to cover 
habitual tardiness. While serious health conditions may well require 
leave to be taken on an intermittent basis, limited tools are available 
to employers in order to determine when the leave is in fact 
legitimate. As a result, 39 percent of HR professionals responding to 
the 2007 SHRM FMLA Survey Report indicated that they granted FMLA leave 
for requests that they perceived to be illegitimate.
15 Years Later--FMLA Clarifications Necessary
    The challenges outlined above have been well-documented over the 
last several years most notably in numerous congressional hearings, 
agency stakeholder meetings and through submissions to the DOL Request 
for Information on the FMLA regulations. SHRM supports the goals of the 
FMLA and wants to ensure that employees continue to receive the 
benefits and job security afforded by the Act. However, given the 
significant challenges HR professionals continue to experience with 
FMLA administration, SHRM respectfully suggests that policymakers take 
steps to address the underlying problems both employers and employees 
encounter with the FMLA.
    Last year the DOL completed a thorough review of the effectiveness 
of the FMLA regulations in which the Department received over 15,000 
comments from employers, employees and other interested organizations. 
The June 2007 DOL Report on the FMLA noted that in many instances, when 
it comes to the ``family'' portion of FMLA, the regulations are 
basically working as Congress intended with few concerns for employers 
or employees. However, the report also highlighted that in other areas, 
particularly in the ``medical'' leave portions of the regulations, 
differing opinion letters, federal court rules and regulator guidance 
have clouded and sometimes undermined key provisions of the FMLA. As 
outlined above, these findings accurately reflect the cumulative 
experiences of HR professionals who have been administering FMLA leave 
for the last 15 years.
    As you know, the Department's review of the FMLA regulations 
culminated in the publication of a Notice of Proposed Rulemaking (NPRM) 
to update the Family and Medical Leave Act regulations on February 11, 
2008. The comment period for this NPRM closes on April 11, 2008, and 
SHRM will provide a copy of our comment submission for the hearing 
record.
    In short, while SHRM appreciates a number of the changes proposed 
by the DOL, particularly the medical certification process, the Society 
believes the proposal fell short in two key areas--the proposed 
regulation fails to significantly improve the definition of a serious 
health condition and there still are no meaningful tools available for 
employers to effectively manage misuse of unscheduled intermittent 
leave or to address many of the unintended consequences of the existing 
regulations. These are important issues that are fundamental to 
effective FMLA administration and as such Congress should strongly 
consider policy options to remedy these challenges.
    Despite these shortcomings, SHRM believes this regulatory action is 
an important step toward restoring the balance intended by Congress 
between employers' business needs and employees' need for time to 
attend to important family and medical issues. After all, the original 
purpose of the FMLA, as envisioned by Congress, will never be fully 
realized until both the employee and employer communities feel 
comfortable in their determination that an employee is rightly entitled 
to FMLA leave.
FMLA Expansions
    While SHRM shares Congress' interest in providing families 
additional work flexibility, we are concerned about proposals to expand 
the Family and Medical Leave Act, including paid leave mandates, given 
current problems implementing FMLA leave. As outlined above, there is 
already a lengthy record of problems with administering leave under the 
Act due to confusing and inconsistent regulations. While well 
intentioned, proposals that build on a flawed FMLA framework will only 
exacerbate the significant challenges both employers and employees 
currently encounter.
    SHRM also has serious concerns about proposals that mandate paid 
leave. As members of the Subcommittee know, in addition to the benefits 
afforded workers under the FMLA, many employees are also eligible for 
paid-time-off benefits provided by their employer. In fact, many 
employers offer generous voluntary paid leave benefits to better assist 
employees in balancing work and personal needs as paid leave programs 
are a key recruitment and retention tool. However, paid leave benefits 
are only one element of an employee's total compensation package that 
includes not only wages but often retirement benefits, health care 
coverage, and other benefits. To meet business objectives, employers 
have a finite pool of compensation dollars. At the same time, costs 
associated with complying with various federal and state mandates 
continue to rise along with the cost of offering employee benefit 
plans, consuming a larger portion of the compensation pool, thereby 
limiting resources for wage increases and other important benefits such 
as paid-time-off programs. SHRM believes that employers, not the 
federal government, are best situated to know the benefit and 
compensation needs of their employees. As such, ``one-size-fits-all'' 
paid leave mandates restrict an employer's flexibility in designing and 
implementing employee benefit plans, which often times works against 
employees. Therefore, SHRM respectfully requests that Congress fix the 
documented shortfalls of the FMLA before considering additional leave 
mandates that curtail an employer's flexibility, including paid leave 
proposals.
Conclusion
    SHRM applauds the Subcommittee's examination of the Family and 
Medical Leave Act to gage whether this leave law is meeting the needs 
of both employees and employers and appreciates the opportunity to 
provide testimony on this important leave statute. As noted earlier, HR 
professionals and their organizations are committed to both the proper 
application of the FMLA in the workplace as well as assisting their 
employees in balancing their work and family demands. The Society looks 
forward to working with the Subcommittee to craft practical workplace 
flexibility policies that meet the needs of employees, their families, 
and employers.
                                 ______
                                 
    Chairwoman Woolsey. Thank you.
    Ms. Ness?

 STATEMENT OF DEBRA NESS, PRESIDENT, NATIONAL PARTNERSHIP FOR 
                       WOMEN AND FAMILIES

    Ms. Ness. Good afternoon, Congresswoman, Congressmen. Thank 
you for holding this hearing.
    I am Debra Ness, president of the National Partnership for 
Women & Families, and for more than 3\1/2\ decades, we have 
been working on issues important to women and families, and we 
are proud of our history as the organization that led that 9-
year campaign for the Family and Medical Leave Act, and, today, 
we lead a coalition of more than 200 groups who are working to 
defend and expand the Family and Medical Leave Act.
    As everyone has noted, this is the 15th anniversary of the 
FMLA, and in our mind, its enactment was truly a watershed 
moment for working families because it was more than just the 
law. It profoundly changed our culture and our expectations of 
the workplace, and it has demonstrated that family-friendly 
policies are good for businesses as well as for workers and 
their families.
    Many of us here today, but most particularly Congresswoman 
Schroeder, were instrumental in winning the passage of the 
FMLA. We overcame a lot of scare tactics--businesses claimed 
that the law would be the end of them--but 15 years later, the 
FMLA is well established and businesses have flourished.
    And it is important for us to remember those scare tactics 
when we talk about expanding the law because opponents will use 
them again and again, and we have to keep in mind that they are 
today what they were then, unfounded claims, and if we summon 
the courage to move forward, we will prove once again that 
family-friendly policies work well for everyone.
    This anniversary is especially sweet for us because it is 
also the year that marks the first time the FMLA has been 
expanded, and, Congresswoman, thank you for holding the 
important hearing last fall that helped lead to the fact that 
today military families can use the FMLA for up to 26 weeks to 
take care of soldiers injured in combat. We are thrilled that 
this law has been expanded to help families that have 
sacrificed so much for our country.
    But, at the same time we celebrate that victory, we are 
also deeply concerned about efforts to chip away at the 
progress we have made. As we all know, comments are due 
tomorrow on the regulatory changes proposed by the Department 
of Labor, and we, of course, will submit comments, and, once 
again, we will put forth comprehensive evidence that the FMLA 
is working well.
    In fact, it is estimated that FMLA has been used 
approximately 100 million times by workers since its passage, 
and, for the most part, the FMLA is accepted by employers, and 
in the department's own words, ``They are pleased to observe 
that in the vast majority of cases, the FMLA is working as 
intended.''
    Yet the changes that are proposed in our mind really begin 
to upset the careful balance that the FMLA strikes between the 
needs of employers and the needs of workers. If the regulations 
are enacted, workers will find that they have to give more 
notice, they have to provide more information, they have to 
have more medical examinations, and they have to respond to 
employer requirements in a shorter timeframe.
    Employers, on the other hand, will have more time to 
respond to requests for FMLA leave and more ways to delay or 
deny it. We are especially concerned that the regulations will 
make it more difficult for workers to use their own earned paid 
leave while they are on FMLA and that it will increase the 
direct contact that employers have with their employees' 
medical providers.
    So we believe these proposals actually go in the wrong 
direction. Instead of limiting employees' access to Family and 
Medical Leave, we should be exploring ways to build on it and 
to expend its protections to more families. Right now, as we 
all know, about 40 percent of workers in this country are not 
even covered by the law, and millions more workers who 
desperately need to use it do not take it because they cannot 
afford to take unpaid leave.
    So there are many things we can do. We need to expand the 
FMLA so that it covers all workers. We need to make it possible 
for workers to take time off for critically important things 
like meeting with a child's teacher or obtaining needed 
services to deal with domestic violence. We should be able to 
allow workers to take time off for other family members, like 
grandparents and siblings, adult children, domestic partners, 
and as Ms. Hunt just pointed out, we need to fix the FMLA so it 
covers flight attendants.
    But perhaps most urgently, we need to provide some kind of 
income support for workers when they take leave. You know, so 
many lawmakers speak passionately about building a nation that 
values families, but millions of workers cannot take care of 
their families because they just cannot miss a paycheck and 
still manage to make ends meet. We can change that.
    California was the first state to pass a paid family leave 
law, Washington State last year became the second, and I think 
it is really exciting that this week New Jersey becomes the 
third state. But we cannot wait for 47 other states to do the 
same. We need a national paid leave law, and, Representative 
Woolsey, I know this is something that you are working on. I 
know you are aware that Senators Dodd and Stevens have 
introduced a bipartisan bill in the Senate and that 
Representatives Stark and Miller are planning to introduce a 
companion bill here in the House. This family leave insurance 
bill really needs to be passed.
    There is just one more thing that I want to add here, and 
that is it is important for us to remember that FMLA coverage 
is limited to serious, long-term illnesses. It does not help 
when you are dealing with a common illness like the flu or you 
need to go for routine medical care like your mammogram or your 
colonoscopy.
    Millions of workers are out of luck when they need that 
kind of care, and that is because almost half of our workforce 
does not have a single paid sick day. They either go to work 
sick or they send a sick child to school because they do not 
have a choice. The Healthy Families Act, which has been 
proposed in both the House and the Senate, would guarantee 
workers 7 paid sick days a year in businesses with 15 or more 
employees. It is already working in San Francisco. It is about 
to become law here in the District, and we really need to adopt 
this as a minimum labor standard nationwide.
    So, in closing, I would just echo something that 
Congresswoman Schroeder said. Our workplaces are terribly out 
of sync with the realities that working families face today. We 
do not, for the most part, in our families, have full-time 
caregivers at home. We lag shamefully behind other countries 
when it comes to taking care of our families, and we can do 
better.
    So there are two things: Let's expand the Family and 
Medical Leave Act, and let's set a minimum standard for paid 
sick days for all workers so that workers do not have to choose 
between their families, their health, or their jobs.
    Thank you very much.
    [The statement of Ms. Ness follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
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    Chairwoman Woolsey. Thank you--all of you. This was a great 
group of witnesses.
    Congresswoman Schroeder has to leave in just a few minutes, 
and I get to go first because I am the Chair of the 
subcommittee. So I am going to ask you a couple of 
straightforward questions, no surprise to anybody.
    Given that the department is not using empirical data for 
their changes, I mean, admittedly so, so I am not asking you, 
Congresswoman, to use empirical data, but tell us if you will, 
what you would do to build on what we have learned over the 
last 15 years regarding bridging work and family and making the 
Family and Medical Leave Act more meaningful and erasing the 
embarrassment that the richest nation in the world cannot take 
care of their working families.
    Ms. Schroeder. Well, I thank you very much for that 
question, and I could give you a book. But, obviously, I really 
think when you look at what is covered by the federal 
government, there are all sorts of different standards. But 50 
employees is a very high standard. I honestly think it should 
go way down to cover many more. Obviously, the smallest of the 
small cannot be covered, but it seems to me that 25 or 20 can 
be covered.
    I think we do need to have 18 weeks. Most pediatricians 
talk about 4 months for bonding at least, minimum, and we do 
not have that. I think we do need to look at how to pay for 
this somehow so people can use it and so forth. I mean, there 
is a whole list. I think the intermittent is terribly important 
because of cancer patients and so forth. We went through that 
and vetted that very carefully.
    Now I know that some employers will say, ``Well, this is 
very hard, and people cheat'' or ``They do this.'' Well, you 
know, they may be stealing paper clips, and they may be doing 
other things. That is a management problem in that company. I 
think that most employers have found this works very well and 
that people are so relieved that they have this benefit that 
they do not abuse it. I am an employer of, you know, 50 people, 
and people do not abuse it. They really are very happy to have 
it, and, you know, part of it is your H.R. provisions and 
making sure that everybody understands what they are and that 
you are going to play by the rules.
    But, to me, when you look at it, as I say, every developed 
nation has done so much more, and I do not understand why we 
have not done more, and I just cannot thank you enough for 
having these hearings 15 years later to say, ``Let's go.'' It 
is amazing to me as a politician because everybody got so 
excited when it passed and everybody talks about how wonderful 
it was, and yet nothing else got added to it until just 
recently. So it is a disconnect, and I think it is time to 
connect it.
    Chairwoman Woolsey. Well, Ms. Ness, what do we do for the 
employee who works for a company with two or three employees? I 
mean, should that person not have----
    Thank you, Congresswoman. Thank you very much.
    Should those workers not have any protection?
    Ms. Ness. Well, you are talking to somebody who believes 
that these protections should be basic labor standards 
available to all workers.
    You know, I think we need a paradigm shift in this country. 
I think for too long we have thought about these kinds of work-
family policies as luxury benefits. They are not. These 
policies make the difference between economic survival and 
economic disaster for families in this country, and so we need 
to take into account the fact that in most families both 
parents are working. We do not have caregivers at home.
    If we really value our families, if we really believe they 
are the backbone of our country, if we really believe that 
strong families are a necessary ingredient to a strong economy, 
then we need to extend these kinds of benefits as basic, basic 
labor protections to all workers.
    Chairwoman Woolsey. Thank you.
    I yield now to Mr. Wilson.
    Mr. Wilson. Thank you, Madam Chairman.
    Ms. Cossette, thank you for your very enlightening 
testimony. You certainly have a unique perspective on the FMLA, 
both as an employee who has personally benefited from its 
coverage and as a human resources professional who has 
confronted the day-to-day issues related to the administration 
of the act.
    You noted in your written testimony the need to undertake 
some modest yet important fixes to ensure that the FMLA serves 
the interests of both employees and employers alike. It is 
important for us as we contemplate the state of the law to take 
into account the need to balance the interests on both sides.
    In your experience, has that balance changed over the 
years?
    Ms. Cossette. I think that over the years, as we have 
experience with it, I do not know that the balance has changed 
dramatically, although there have been some difficulties in 
administering it and that, of course, it falls more on the 
employers' side, but I think, at this time, we are not looking 
that anybody has any leave taken away from them. We think it is 
important that it works as Congress intended, and we do not 
want leave taken away from them.
    But, you know, SHRM supports the DOL's proposal to update 
the regulations, but there are some elements of it that we 
think that would improve FMLA implementation, and there are two 
basic areas, and the first is really to get a clarification of 
what constitutes a serious health condition, and that is really 
been something over the last 15 years that has made it more 
difficult because so many things become a serious health 
condition under the law now, anything that requires you to be 
out at least 3 days and see a medical professional. That can be 
anything.
    Second, the proposal does not address the size of 
increments of intermittent leave that can be taken, even though 
even according to the testimony from the DOL today, no issue 
received more substantious commentary to the Request for 
Information than the employees' use of unscheduled intermittent 
leave. So those are two areas that I think Congress may need to 
address, both intermittent leave and the definition of serious 
health conditions.
    Mr. Wilson. Additionally, in your testimony, you spoke 
about the numerous challenges that human resources 
professionals face in administering unscheduled, intermittent 
leave. It must be difficult to keep track of this type of leave 
usage, especially when taken in small increments.
    It would seem that the administrative and scheduling issues 
presented by this type of leave would be the most challenging 
part of the FMLA, particularly for smaller businesses. Could 
you elaborate on issues that employers face when tracking time 
in very small increments?
    Ms. Cossette. Well, I will try to do that for you. The 
difference really between the type of unscheduled intermittent 
leave that I am using in order to recover from my treatments 
and the unscheduled intermittent leave that really creates the 
challenges for employers is, you know, when you have 
unscheduled intermittent leave, but you are still undergoing a 
regiment of treatments, it is more expected by the employer 
rather than those that are just intermittent because they have 
had a certification that allows them for an entire year to just 
have intermittent leave when they choose to have it, and I have 
no idea as an employer when that is going to happen. It makes 
it difficult to schedule someone to replace them.
    We do understand there are emergencies. There are always 
medical emergencies. We understand that. But I think there are 
some--this is an area where inappropriate use of FMLA is 
happening, and that is our challenge.
    Mr. Wilson. And I want to commend your profession, human 
resources. I frequently--I am sure Congresswoman Woolsey does, 
too--will go and visit different plants and office buildings 
and facilities, and, invariably, the brightest-looking person, 
full of enthusiasm, is H.R., and then I appreciate the 
opportunities they give to persons and then the recommendations 
they make to other businesses in the event that they are not 
applicable where they apply. So your profession is 
extraordinary.
    And one final note as I conclude, Ms. Lasco. One of my sons 
is an assistant prosecutor, and so I know the time that is 
required, and I really admire it. And your baby was cute as a 
button. So you are obviously doing very well professionally and 
with your family. God bless you.
    Thank all of you for being here.
    Ms. Lasco. Thank you.
    Chairwoman Woolsey. Congressman Hare?
    Mr. Hare. Thank you, Madam Chair.
    Ms. Lasco, let me just give you a comment from a 
perspective. My father died shortly before my son was born, 
and, you know, he did not get a chance to see him, but I just 
want to say, you know, you talked about your mother leaving a 
gift, and I just want you to know that from my perspective, she 
left a wonderful gift for your grandson, that was you, and I 
appreciate everything that, you know, you do and how hard it is 
to have that balance.
    Ms. Hunt, I just wondered--Tim Bishop asked me if I would 
try to fill in for him on it because he is the author of H.R. 
2744, and I just have a couple of questions for you. I am proud 
to be a co-sponsor of it. Does your company have any paid leave 
policies?
    Ms. Hunt. No.
    Mr. Hare. You have none. So maybe could you describe for us 
what it is like to be on call?
    Ms. Hunt. On call is a reserve flight attendant, and they 
are on call about 20 days a month, and they have to be at the 
airport in as short amount of time as an hour, so they cannot 
get another job. They are on duty for US Airways, or whatever 
airline, for 20 days a month. So they are considered full-time 
and they are paid as full-time because they are unable to look 
for other compensation during those 20 days.
    Mr. Hare. So, just to clarify, there is no partial pay or 
supplemental wages for all the extra hours for the flight 
attendants that are on call?
    Ms. Hunt. No.
    Mr. Hare. None?
    Ms. Hunt. None at all.
    Mr. Hare. And then just my last question for you would be: 
How would H.R. 2744 make your situation different for all those 
employees that we are talking about here?
    Ms. Hunt. I think it is a huge stress reliever to know that 
your job is going to be there and also that you do not have to 
constantly be negotiating, juggling your schedule, trying to 
make this work out, and being able to be there for your family 
member or for yourself and not have to be concerned about the 
job being there.
    Mr. Hare. And, Ms. Ness, if I could, just two quick 
questions. We have had some--I believe Ms. Cossette testified 
that mandated paid family medical leave might be detrimental, 
and I wondered if you would, you know, care to comment on it. 
Do you think the claim is legitimate, and if not, why not?
    And then my second question to you is: How would you 
respond to the claim that paid leave legislation is not needed 
because the employers are best situated to know what to do and 
what benefits to compensate their employees by?
    Ms. Ness. Okay. Could you just repeat the last part of the 
first question? I did not hear the actual question.
    Mr. Hare. Sure. I believe Ms. Cossette testified that 
mandating paid family medical leave would be detrimental, and I 
wanted to know from your perspective do you think that claim, 
you know, is legitimate, and if not, why not?
    Ms. Ness. Okay. Well, I will start by saying that the 
claims of detriment to business are familiar. They are very 
similar to the claims we heard back in the early 1980s when we 
first started working on the Family and Medical Leave Act. They 
are the same claims that we hear any time we propose a move 
forward in terms of work family policies. They are the same 
claims we hear when we talk about paid sick days.
    To my knowledge--and I think if you look at the track 
record of the Family and Medical Leave Act--you will not see 
that those claims have materialized. It did not hurt 
businesses. Workers did not lose their jobs. Employers did not 
cut back on benefits. In fact, after the Family and Medical 
Leave Act, we entered a thriving period in our economy.
    So I think they are legitimate fears, but I think that 
those fears do not come to pass, and we cannot allow ourselves 
to be held back from moving forward because of those fears.
    I think it would be nice if every employer provided these 
benefits voluntarily. I think many employers are doing the 
right thing. I think many are model employers. I think many are 
doing what they think is good for workers, but also what they 
think is good for the bottom line because there is lots of 
evidence that these policies are not just good for workers and 
their families. They are also good business sense.
    But, unfortunately, not all employers do the right thing, 
and some employers are shortsighted, and so while it do not 
necessarily make good economic sense to refuse to provide these 
kinds of benefits, unfortunately, too many employers do, and 
that is why I think we need these laws.
    Mr. Hare. And then just one quick question just for 
statistical purposes: You said what percent of workers have 
absolutely no paid leave at all?
    Ms. Ness. About half of all workers in this country do not 
have a single paid sick day, and when you look at low-wage 
workers, it is almost 80 percent.
    Mr. Hare. That is incredible. Well, we can do much better 
than that. We are going to.
    Ms. Ness. We definitely could.
    Mr. Hare. I appreciate your all coming. Thank you.
    I yield back.
    Chairwoman Woolsey. Congresswoman Shea-Porter?
    Ms. Shea-Porter. Thank you.
    Ms. Ness, I am a big advocate for privacy, and when I read 
through your testimony, I was very concerned. One of the 
proposed changes deals with the manner in which an employer can 
contact an employee's health care provider, and the changes 
that you mentioned in your testimony with respect to this issue 
are of particular concern to me, and I would imagine that these 
concerns are shared by most Americans.
    This is fundamentally, I think, an issue of privacy. Can 
you go into more detail on the specific change and the chilling 
effect that allowing for direct employer-doctor contact will 
have both from the perspective of the single proposal and then 
also within the context of the other changes that are proposed?
    Ms. Ness. Well, I am sure I do not need to tell you how 
concerned people are about privacy these days. It seems like we 
are constantly hearing about breaches in privacy and people's 
confidential information. When it comes to confidential medical 
information, those concerns are really off the charts.
    People are very worried about their personal private 
medical information getting into the wrong hands or being used 
inappropriately, and most people will tell you they do not want 
their employers to have any more access to their medical 
history or any more contact with their medical providers than 
absolutely necessary.
    I think the troubling thing about the proposed changes in 
the regs is that while it is true that the employee has to sign 
a HIPAA release, if you do not do that, you do not get your 
Family and Medical Leave. So, yes, you have to give consent for 
the employer to get the information from your medical provider, 
but if you do not, you do not get the benefit. So I think many 
employees feel like that is not much of a choice.
    I think the other problem is that we have now made it 
possible for employers to talk directly with medical providers 
as opposed to there being a medical professional as an 
intermediary. Again, you are putting the employer one step 
closer to being able to get medical information, and people are 
very nervous about how that information could be used in the 
workplace.
    Ms. Shea-Porter. Thank you, and that is exactly my concern. 
Can you think of any good reason they proposed this instead of 
allowing doctor-to-doctor relationships and correspondence 
there to make it so that somebody's employer can now speak 
directly? What do you think the reason for that was?
    Ms. Ness. I am assuming that from an employer point of 
view, it is an opportunity to streamline the process and 
potentially the elimination of the expense of having a health 
care professional be in an intermediary role, but I balance 
that against the enormous risks and the enormous harm that can 
be caused people if their medical information is used 
inappropriately or gets into the wrong hands.
    Ms. Shea-Porter. I agree with you.
    And thank you.
    Chairwoman Woolsey. Mr. Wilson?
    Mr. Wilson. Madam Chairwoman, I have a unanimous consent 
request that the Request for Information and a copy of the 
Notice of Proposed Rulemaking be put in the hearing record.
    Chairwoman Woolsey. Without objection.
    [The information follows:]
    [Federal Register, 29 CFR Part 825, Family and Medical 
Leave Act Regulations: A Report on the Department of Labor's 
Request for Information; Proposed Rule, appears at the 
following Internet address:]

  http://www.dol.gov/esa/whd/FMLA2007FederalRegisterNotice/07-3102.pdf

                                 ______
                                 
    [The Department of Labor's proposed rules change in the 
FMLA, dated February 11, 2008, appears at the following 
Internet address:]

             http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf

                                 ______
                                 
    Chairwoman Woolsey. Well, thank you all for being here.
    I particularly want to thank Assistant Secretary Lipnic. 
You were here the whole time. This does not happen. Thank you 
very much. And I respect you for staying, and I thank you for 
staying.
    Now I also want to thank the mother of FMLA, Congresswoman 
Pat Schroeder, for being here and taking her time.
    But I would like to remind everybody that in 1993 when we 
passed FMLA, that was following the election that was the year 
of the woman. That was actually my first year here in Congress, 
and I would like you to look at each other, who has been up 
here testifying before us, including our Assistant Secretary, 
all wonderful women, and that is because without a doubt 
whatever we do with FMLA affects women more than anybody else.
    But this is not just a women's issue. It is a family issue. 
So thank you for what you have provided us. We have to learn 
from the last 15 years and build upon it, not take away from 
it, and all of you have helped us very much going in the right 
direction.
    Thank you very much.
    Oh, wait. I have other things to say. [Laughter.]
    I have my script.
    As previously ordered, members will have 15 days to submit 
additional materials for the hearing record.
    Any member who wishes to submit follow-up questions in 
writing to the witnesses should coordinate with the majority 
staff within 15 days.
    Without objection, this hearing is adjourned.
    [Letter from the American Association of University Women, 
dated April 8, 2008, submitted by Ms. Woolsey follows:]

                  American Association of University Women,
                                                     April 8, 2008.
Chairwoman Lynn Woolsey, Ranking Member Joe Wilson,
Subcommittee on Workforce Protections, Committee on Education and 
        Labor, Rayburn House Office Building, Washington, DC.
    Dear Chairwoman Woolsey and Ranking Member Wilson: On behalf of the 
more than 100,000 bipartisan members of the American Association of 
University Women, I write to share AAUW's comments for the April 10, 
2008 Subcommittee on Workforce Protections hearing, ``The 15th 
Anniversary of the Family and Medical Leave Act: Achievements and Next 
Steps.''
    AAUW strongly supports the Family and Medical Leave Act, and is 
concerned that the Notice of Proposed Rulemaking and Request for 
Comments (NPRM) issued on February 11, 2008 is a sign that the U.S. 
Department of Labor is considering regulatory changes that would roll 
back the FMLA's protections or narrow the scope of its coverage. AAUW 
supports regulations that ensure workers can take full advantage of 
their FMLA protections, and strongly opposes any changes that would 
limit the scope of the FMLA.
AAUW's Support for the Family and Medical Leave Act
    AAUW believes that creating work environments that help employees 
balance the responsibilities of work and family is good public policy--
good for workers, good for families, and good for business. AAUW's 
member-adopted 2007-2009 Public Policy Program supports family and 
medical leave policies, which for women are critical to ``equitable 
access and advancement in employment.''\1\ AAUW efforts in this area 
include long term advocacy from 1983 to 1992 to pass the Family and 
Medical Leave Act, which was finally signed into law in 1993.
    The FMLA is a groundbreaking law that helps employees balance the 
increasing demands of work and family at little or no cost to 
employers. More than 50 million covered and eligible employees have 
used the FMLA to take care of themselves and their families during 
times of critical need without jeopardizing their health insurance 
benefits or job security.\2\
    In January 2001, the bipartisan Commission on Family and Medical 
Leave released a study reporting that almost 90 percent of covered 
employers said that complying with the FMLA brought no or minimal 
increase in their administrative costs.\3\
    Further, while the vast majority of employers reported the FMLA had 
no impact on business practices, productivity, and outcomes, some 
employers reported cost savings associated with lowered employee 
turnover, as well as improved employee morale.\4\
    By making leave available to all eligible workers, the law has 
enabled both women and men to balance their work and family obligations 
without sacrificing long-term economic stability. The law also helps 
combat gender discrimination and insidious stereotypes about gender 
roles--because both male and female workers can take FMLA leave, the 
law helps to ensure that women are not penalized or unfairly denied job 
opportunities simply because of assumptions about their family 
caregiving responsibilities.
    The FMLA is a real success story: it ensures that America has 
productive and successful workers and healthy and secure families. 
However, in the fifteen years since the law's passage, some clear areas 
for improvement have emerged. One of the biggest challenges in FMLA 
coverage clearly arises from its unpaid status. For example, 78 percent 
of eligible employees who have needed FMLA-covered leave have not been 
able to take it because they could not afford it.\5\
    AAUW believes we should be putting our energy into expanding the 
FMLA to cover more workers, and into making paid family and medical 
leave and paid sick days available to all.
Context of Notice of Proposed Rulemaking and Request for Comments 
        (NPRM)
    AAUW has included comments in response to the NPRM below. However, 
these comments must be placed in context by outlining several 
overarching concerns AAUW has about the NPRM itself.
    Any examination of the FMLA should focus squarely on how to ensure 
vigorous FMLA enforcement and compliance with the law, and to identify 
ways to expand the law to more workers in need of the FMLA's 
protections. AAUW is concerned that the NPRM is more focused on 
imposing limits or constraints on the FMLA, rather than full 
enforcement and compliance. This approach, if pursued, will impede the 
ability of workers to use the FMLA effectively to balance their work 
and family responsibilities, and will result in the erosion of the 
FMLA's core protections. It is crucial for the U.S. Department of Labor 
to demonstrate a clear and consistent commitment to comprehensive 
implementation and enforcement of the FMLA.
    In addition, the lack of available data is an unfortunate reminder 
of U.S. Department of Labor's own failure to conduct objective studies 
on the FMLA and its implementation in recent years. The Request for 
Information from 2007 took great pains to criticize the 2000 study of 
the FMLA undertaken by Westat and commissioned by the department 
(``2000 Westat Study''). But the 2000 Westat Study, even with its 
limitations, has been invaluable and represents the best available 
source for information on FMLA usage and coverage. The department has 
neglected to undertake significant efforts to update this research, 
thus leaving an information void. While the 2007 Request for 
Information solicited data from the public on a long list of questions, 
in many cases it is the U.S. Department of Labor that is best 
positioned to gather the relevant data to provide answers. To pursue 
changes to the FMLA regulations without such scientifically valid data, 
however, is unwarranted and inappropriate.
    AAUW has identified these core concerns at the outset to make clear 
the inherent problems we believe are reflected in the NPRM that raise 
questions about its utility and could be used to undermine vital FMLA 
protections.
Responding to the NPRM: AAUW's Key Issues
            Employee Eligibility
    AAUW opposes any changes to the current eligibility standards that 
would impose additional obstacles for workers seeking to take FMLA 
leave. Existing eligibility rules were drafted to find the appropriate 
balance between the needs of employers and employees. At a minimum, we 
should preserve this balance and ensure that workers who meet the 
requirements for leave are able to take it. To the extent that changes 
to employee eligibility are under consideration, AAUW believes the 
focus should be on ways to expand FMLA eligibility to cover more 
workers who currently are unable to take leave when faced with a family 
or medical emergency.
            Serious Health Condition
    AAUW opposes any regulatory changes that would scale back the 
definition of ``serious health condition.'' The FMLA enables eligible 
workers to take family or medical leave for serious health 
conditions,\6\ and its regulations establish objective criteria to be 
used to determine whether conditions qualify for leave.\7\ While the 
regulations set parameters to help define these conditions, they do not 
include an exhaustive list of conditions deemed ``serious'' or ``not 
serious.'' As explained in the preamble of the FMLA regulations, the 
U.S Department Labor ``did not consider it appropriate to include * * * 
the `laundry list' of serious health conditions listed in the 
legislative history because their inclusion may lead employers to 
recognize only conditions on the list or to second-guess whether a 
condition is equally `serious,' rather than apply the regulatory 
standard.''\8\ The regulations are intended to create a reasonable 
standard that can be applied with sufficient flexibility to adjust for 
differences in how individuals are affected by illness--what can be a 
serious life threatening illness for one individual can be a minor 
illness for someone else.
    The current regulations defining ``serious health condition'' 
reflect the practical reality that serious health conditions that 
require family or medical leave can sometimes be of a fairly short 
duration. Current FMLA regulations also appropriately acknowledge that 
the relevant consideration for leave eligibility is the impact of the 
medical condition on a worker's need for leave, and not the particular 
diagnosis. The existing regulations properly define a serious health 
condition by applying objective criteria to a worker's individual case, 
including duration of the illness and number of treatments, rather than 
categorically excluding any set of health conditions from FMLA 
coverage. AAUW believes the current regulations are crafted 
appropriately to provide guidance on what constitutes a serious health 
condition without imposing overly rigid criteria that could hinder the 
ability of workers to take leave when necessary.
            Leave Flexibility
    Regarding leave flexibility, AAUW believes the current regulations 
addressing intermittent leave appropriately balance workers' need for 
flexibility and employers' interest in having adequate staff to cover 
their workplace needs. The NPRM unnecessarily clarifies what leave 
qualifies for FMLA exchange. By making the transformability less 
flexible, workers are penalized. Leave flexibility not only benefits 
workers; it also benefits employers by maximizing workers' ability to 
meet workplace demands in the face of family and health challenges. 
AAUW supports the current regulations on intermittent leave.
    The current regulations allowing for the substitution of paid leave 
for FMLA leave are essential to workers' ability to exercise their 
rights under the law. Permitting workers to use their accrued paid 
leave during FMLA leave makes it possible for them to afford to take 
time off to address critical family and medical issues. While the FMLA 
has been an enormous gain for millions of workers, many employees have 
been unable to make use of its benefits because the leave authorized 
under the FMLA is unpaid. Thus, AAUW believes the provisions in the law 
allowing employees and employers to substitute paid leave benefits for 
FMLA leave in some circumstances are particularly important and should 
remain in the regulations.
            Medical Certification
    AAUW opposes any changes to the medical certification regulations 
that would impose unnecessary obstacles for workers seeking FMLA leave 
and is disappointed with the proposed changes. The existing medical 
certification regulations appropriately balance a worker's interest in 
a manageable process that does not impose unreasonable burdens with the 
employer's interest in accurate certification of the worker's medical 
condition. Additionally, the regulations recognize that employer's 
judgment regarding an employee's health condition should not be 
substituted for the professional medical opinion of the employee's 
health care provider. AAUW opposes any changes to the certification 
requirements that would create unnecessary barriers and impose 
unnecessary costs to workers who need to take FMLA leave.
Conclusion
    The FMLA represents a critical step towards this country becoming a 
nation that values working families, and more specifically, does not 
discriminate against working women who provide the lion's share of 
family caregiving. The law has been instrumental in enabling workers 
across the country, in every occupation and industry, to take leave to 
care for family members or themselves without putting their jobs, their 
healthcare benefits, or their family stability at risk.
    AAUW urges the U.S. Department of Labor to make strong FMLA 
enforcement, support for existing FMLA regulations, and comprehensive 
FMLA research key priorities. The department should require employers 
to provide workers with adequate information regarding their rights and 
responsibilities under the FMLA. Employers also should be required to 
promptly inform workers when they are using their FMLA leave, and to 
maintain records of FMLA leave balances. AAUW also strongly recommends 
that the U.S. Department of Labor significantly increase efforts to 
educate the public about the FMLA. The department should use this NPRM 
process to publicly affirm its commitment to consistently and 
vigorously uphold and enforce the FMLA, and begin this public education 
process. AAUW strongly opposes any efforts to rollback the FMLA's hard-
won protections, and urges the department to reject any recommendations 
in that direction.
    AAUW will continue to oppose all efforts to weaken FMLA 
protections, which would limit women's equal opportunity in the 
workplace. AAUW will also work to advance policies that will improve 
workplaces for employees with family responsibilities of all kinds. 
Such protections and improvements are critical to women's employment 
opportunities and economic security.
    If you have any questions, please feel free to contact me at 202-
785-7720, or Tracy Sherman, government relations manager at 202-785-
7730. Thank you for the opportunity to submit comments for the hearing 
on the important role of the FMLA.
            Sincerely,
                                             Lisa M. Maatz,
                  Director, Public Policy and Government Relations.
                                endnotes
    \1\ 2007--09 AAUW Public Policy Program (approved July 2007).
    \2\ National Partnership for Women and Families. All statistics 
were compiled from the U.S. Department of Labor report, Balancing the 
Needs of Families and Employers: Family and Medical Leave Surveys 2000 
Update. http://www.nationalpartnership.org/portals/p3/library/
FamilyMedicalLeave/THEFMLAWhatWhoHow.pdf. Accessed January 5, 2007.
    \3\ National Partnership for Women and Families. All statistics 
were compiled from the U.S. Department of Labor report, Balancing the 
Needs of Families and Employers: Family and Medical Leave Surveys 2000 
Update. http://www.nationalpartnership.org/portals/p3/library/
FamilyMedicalLeave/THEFMLAWhatWhoHow.pdf. Accessed January 5, 2007.
    \4\ U.S. Department of Labor, Bureau of Labor Statistics. The 2000 
THE FMLA Survey Report. Table A2-6.12 and A2-619. http://www.dol.gov/
esa/whd/theFMLA/theFMLA/APPX-A-2-TABLES.htm Accessed January 12, 2007.
    \5\ U.S. Department of Labor, Bureau of Labor Statistics. The 2000 
THE FMLA Survey Report. Table A1-2.17. http://www.dol.gov/esa/whd/
theFMLA/theFMLA/APPX-A-1-TABLES.htm Accessed January 12, 2007.
    \6\ 29 U.S.C. Sec. Sec.  2611(11), 2612(a)(1)(C), (D).
    \7\ 29 C.F.R. Sec.  825.114.
    \8\ Regulatory Preamble, 60 Fed. Reg. at 2195 (emphasis added).
                                 ______
                                 
    [Additional submissions of Mr. Wilson follow:]
    [Statement of the National Business Group on Health 
follows:]

      Prepared Statement of the National Business Group on Health

    The National Business Group on Health (The Business Group) commends 
the Congress and the U.S. Department of Labor (DoL) for their efforts 
to improve an important law that has helped millions of workers and 
their families in times of serious medical illness and the birth or 
adoption of a child. The updated rules, recently proposed by the DoL, 
will make needed corrections and clarifications to help ensure that the 
benefits of the 15 year old law remain secure. The Business Group, 
representing over 300 large employers that provide health care coverage 
to more than 55 million U.S. workers, retirees and their families, is 
the nation's only non-profit organization devoted exclusively to 
finding innovative and forward-thinking solutions to large employers' 
most important health care and related benefits issues. Business Group 
members are primarily Fortune 500 and large public sector employers, 
with 63 members in the Fortune 100.
    The Business Group appreciates the opportunity to submit this 
statement for the record. Today's hearing addresses necessary updates 
to the current law to assure appropriate use of the Family and Medical 
Leave Act (FMLA) in order to protect leave for those who need it, to 
improve productivity and employee morale, and to minimize the 
administrative burden that invites litigation and threatens the 
integrity of this important law.
    Employers recognize the importance of family leave and these new 
rules will help to make clear what employees need to do to take FMLA 
leave for their own serious illnesses. The updated rules will also make 
it easier for human resources professionals and employers to administer 
FMLA for serious medical illnesses.
    As stated recently by Helen Darling, President of the Business 
Group, ``Employers consistently rank FMLA at the top of the list when 
asked what the most difficult federal regulation to administer is. 
While the family leave part of the law works well, unclear and 
sometimes conflicting regulations and court decisions pertaining to 
employees' medical leave continue to increase the administrative costs 
for employers and causes workplace disruption for employees.''
    The Business Group's members generally offer generous benefit and 
leave programs. Employees often have multiple options for leave--paid 
and unpaid. In many cases, employees may use accrued paid leave and 
FMLA simultaneously. The Business Group does not support mandated paid 
FMLA leave. The Business Group does support appropriate use of FMLA. 
However, many employers are experiencing dramatic increases in 
employees' requests for FMLA leave, often for brief time periods and 
non-serious medical conditions, and experience substantial burdens 
administering FMLA.
Clarifications Needed
    While a number of items are addressed in DoL's proposed 
regulations, the following clarifications and technical corrections to 
FMLA are needed to help assure appropriate use of FMLA and to minimize 
the administrative burden and adverse productivity impacts of many of 
the current FMLA regulations:
     Clarifying the qualifying conditions for FMLA eligibility 
pertaining to employees' requests for leave due to their own health 
condition by adding an inability to work test to qualify for FMLA;
     Clarifying the definition of qualifying conditions and 
exclusions eligible for FMLA by specifying additional conditions that 
would generally qualify and conditions that would not generally qualify 
for FMLA;
     As a fallback to the two clarifications above, requiring 
mandatory inclusion of the diagnosis code or codes on the medical 
certification provided by the employee and attending physician to the 
employer;
     Establishing a minimum leave time in larger time 
increments;
     Permitting employers to require employees who request 
unscheduled intermittent leave to choose between extending FMLA leave 
or a leave of absence if the employer cannot reasonably accommodate the 
request;
     Permitting employers to contact providers to confirm 
information provided by employees;
     Maintaining the employer option of permitting employees to 
use accrued paid leave and FMLA simultaneously; and
     Permitting employers to exclude employees taking FMLA 
qualifying absences from employee bonus and recognition programs for 
attendance.
    Employers Are Experiencing a Dramatic Increase in Requests for FMLA 
Leave, Often for Short Periods or Minor Conditions. Some Examples are 
Listed Below:
     Some employers report that up to 25% of their employees 
take FMLA leave each year.
     One employer states that FMLA leave is often used for 
headaches, sinusitis, colds, flu, tooth extractions and other minor 
illnesses for which recovery is brief.
     Another employer cites cases in which employees whose 
vacation requests for specific time periods have been turned down 
subsequently file for FMLA leave for stress because their vacation 
requests were denied.
     In other cases, FMLA leave is requested in the absence of 
any medical condition, serious or minor. For example, an employee 
requests FMLA leave because their acupuncturist wants to observe their 
response to treatment for a long period of time.
The Administrative Requirements for FMLA Are Burdensome
     One employee requests a ten minute FMLA leave every week 
to attend to a contact lens problem. The employer generates a 
significant amount of paperwork to comply with this request. A minimum 
leave period would alleviate this burden.
     Although employers may request a second medical opinion 
prior to granting FMLA leave, it is often scheduled too late by the 
individual to be of any use. Amending the FMLA to permit employers to 
contact providers, as proposed by DoL, to confirm the presence of a 
serious condition for which recovery is not expected to be brief would 
enable employers to confirm information.
     Coordination with disability leave is complicated because 
guidelines for implementing FMLA leave are not as strict as those for 
disability leave. For example, while some conditions may qualify for 
FMLA, they do not qualify for disability leave. Clarifying the 
definition of qualifying serious medical conditions would facilitate 
coordination with disability leave.
Comments to the Department of Labor Provide Specific Examples of FMLA 
        Abuse
     Because employees can essentially establish their own 
schedules under FMLA regulations, there is evidence of employees who 
take their FMLA leave during regular working hours and then work the 
overtime shifts (evenings, weekends, and holidays) to work their 
required number of hours to maintain employment and at the same time 
collect higher wages. An airline reports that employees use FMLA to 
work shifts paying overtime but are often no shows for regular shifts. 
FMLA usage plummets on December 25 (Christmas Day) each year when 
triple overtime is paid. FMLA usage is near its peak the day before 
Christmas and jumps the day after, but nearly all those employees who 
have been out on FMLA are able to come to work on Christmas day.
     A state agency reports that FMLA misuse affects morale 
negatively. Some employees have ``bragged to others how easy it is to 
get the extra time off and how they use this time for vacation.''
     Multiple industries have mandated staffing ratios. 
Hospitals are required to staff a certain number of nurses per patient, 
schools are mandated to have a certain number of teachers per student, 
and planes cannot fly without the appropriate number of flight crew. 
When FMLA leave is taken intermittently and without prior notice, the 
ability to conduct ``business as usual'' can be threatened. Employers 
incur higher costs when they have to bring on an unscheduled worker and 
pay that person a higher wage to cover the absent employee. For 
example:
     A 911 call center reports ``an enormous amount of short 
notice overtime is required to handle unscheduled absences. This leads 
to overtired people making critical life and death decisions during 
emergencies.''
     A school district notes that that bus drivers claiming 
FMLA leave with no notice ``mean[s] children are often left waiting on 
street corners in all weather'' while the County tries to find 
replacement drivers.
     The way that FMLA is structured-up to 60 days off each 
year-could potentially allow an employee to have four-day work weeks 
for an entire year. This means that employees who are classified as 
full-time workers, but only work part-time, receive full-time benefits 
while employees who are truly part-time workers only receive part-time 
benefits (if any). One state reports that some intermittent FMLA leaves 
almost default into light duty assignments because supervisors must 
reassign work that the frequently-absent employee is responsible for to 
ensure that deadlines are met and services are provided to customers.
DoL's Proposed Updates to the FMLA
    The new rules should make clearer both employees' obligations to 
notify employers when taking FMLA leave and employers' obligations to 
employees regarding FMLA notice requirements, reducing future lawsuits 
over different interpretations of the rules. The vagueness of the old 
rules, some of which were nullified by the Supreme Court in Ragsdale v. 
Wolverine Worldwide Inc. and other court rulings had provoked numerous 
lawsuits against employers. The new rules strengthen requirements to 
document serious illnesses and improve the ability to verify the 
presence of serious illnesses for FMLA leave.
Definition of ``Serious Health Condition''
    The Business Group supports a clarification of ``serious health 
condition'' by listing examples of conditions that would generally 
qualify and conditions that would generally be excluded, to reduce the 
use of FMLA leave for minor conditions in which treatment and recovery 
are brief. This would reduce this burden on employers by excluding from 
the list of conditions minor conditions such as colds, minor headaches, 
and the flu.
Reduced /Unscheduled Intermittent Leave
    The Business Group supports a clarification that employers may 
track unscheduled intermittent leave in larger time increments. This 
clarification would ease the cost and paperwork burden, while ensuring 
that those employees who need intermittent leave are granted such 
leave. Employers should also be able to require employees who request 
unscheduled intermittent leave to choose between extended FMLA leave or 
a leave of absence.
Relationship to Paid Leave
    The Business Group supports the current policy regarding concurrent 
leave, which gives employers the option of permitting employees to use 
accrued paid leave and FMLA simultaneously. This policy protects 
employees' incomes during periods of serious illness and maximizes the 
flexibility in the design of employer leave policies.
Perfect Attendance Awards
    The Business Group supports the proposed changes to perfect 
attendance awards. The unintended consequence of current law is that 
many employers have dropped these programs due to the negative impact 
on employees who have not missed any work being recognized alongside 
employees who may have taken up to 12 weeks of FMLA leave. This change 
would allow employers to use attendance, bonus and recognition programs 
once again as a means of rewarding employee attendance and improving 
employee morale.
Waiver of Rights
    The Business Group supports the ability to voluntarily waive rights 
and allow employees to settle FMLA claims out of court.
Employer Notice Requirements
    While 15-business days is justified for notification, as it is 
equal to the amount of time employees are allowed to return their FMLA 
paperwork, a 10-day time frame is more reasonable than the increase to 
5-business days contained in the proposed rule to allow employers more 
time to make a well-informed decision as to whether FMLA leave is 
warranted.
Employees' Notice Obligations
    The Business Group supports advance notification of employees 
taking FMLA leave. Lack of advance notice (e.g., before employees' 
shifts start) for unscheduled absences is one of the biggest 
disruptions employers point to as an unintended consequence of the 
current regulations.
Medical Certification Process
    The Business Group recommends requiring physicians to include 
diagnosis codes on the certification form. By requiring physicians to 
include the diagnosis code or codes on the medical certification form, 
the DoL could dramatically improve the proper use of FMLA. In addition, 
the DoL should make the form more concise by adding the non-serious 
health condition list to the form.
Recertifications
    Many employers find that doctors recertify using the same 
information from the initial certification and simply change the date. 
The Business Group recommends the DoL create a sample form for 
recertification (in addition to the revised WH-380 or create a new 
section for recertification) that provides a standard set of questions 
for health care providers. The form could include language to deter 
health care providers from ``rubber stamping'' the initial 
certification.
    Our understanding of the current regulation is that employers must 
not only delay the request for 30 days but also then wait an additional 
period until the employee's next absence. This could be any number of 
days after the 30-day period ends. We have seen that many employers 
simply send out the recertification request every 30 days without 
waiting until the next absence. The Business Group believes employers 
need clearer direction to administer these recertifications. In 
addition, the former interpretation (waiting until the next absence 
after the 30-day period) is extremely challenging to administer.
Fitness for Duty (FFD)
    The Business Group is pleased the proposed rule will enable 
employers to require ``fitness-for-duty'' certifications to assess 
employees' abilities to perform the essential functions of their jobs 
before they return to work following regular or intermittent FMLA 
leave.
    The Business Group also supports the proposed language that will 
enable employers to provide physicians with a list of essential job 
functions and require employees' health care providers to certify 
whether employees can perform the work. This is a vast improvement to 
the current practice where physicians submit only statements to 
employers that employees can return to work, but may not know their job 
functions and duties, which creates unnecessary risks (for both 
employers and employees), and jeopardizes workplace and public safety, 
if individuals returning to work can not perform their jobs.
Military-Related FMLA Leave
    Employers recognize the importance of added flexibility and the 
need to support military families. The Business Group also believes 
that the new military-related FMLA leave provisions are best 
administered and understood by both employees and employers if they are 
administered in a way consistent with other FMLA leave where possible. 
The Business Group believes military-related FMLA leave should be 
limited to the ``exigencies,'' listed in the proposed regulation, 
including: making arrangements for child care, financial and legal 
arrangements to address service members' absences; attending counseling 
related to the active duty of the service member; attending official 
ceremonies or programs where the participation of the family member is 
requested by the military; attending to farewell or arrival 
arrangements for a service member; and attending to affairs caused by 
the missing status or death of a service member.
    The Business Group believes the DoL should also follow the existing 
precedent under all other FMLA leave and clarify the fact that requests 
for more than one FMLA absence in a year is based on a maximum total of 
FMLA leave per employee. The Business Group believes that employees 
with multiple leave requests should also follow the proposed regulation 
to require employees requesting FMLA leave to follow their employers 
usual and customary call-in procedures for reporting an absence.
    Again, the Business Group appreciates the opportunity to submit 
this statement for the record. We look forward to working with the 
Congress and the members of this Committee to ensure that both 
employers and employees continue to benefit from an updated FMLA policy 
for the 21st Century.
                                 ______
                                 
    [Statement of the National Coalition to Protect Family 
Leave follows:]

  Prepared Statement of the National Coalition to Protect Family Leave

    The National Coalition to Protect Family Leave (``Coalition'' or 
``NCPFL'') is a broad-based, non-partisan group of organizations, 
companies and associations dedicated to protecting the integrity of the 
Family and Medical Leave Act (``FMLA'' or ``the Act''). The Coalition 
supports both the spirit and intent of the FMLA and commends the 
Subcommittee for holding this hearing commemorating the 15th 
anniversary of this important statute. The Coalition appreciates the 
opportunity to submit this statement for the record.
    Since its enactment in 1993, the FMLA has guaranteed invaluable 
work and family flexibility for millions of Americans. Members of the 
Coalition recognize the challenges employees face in balancing work and 
family demands and their desire to feel secure in their jobs, 
particularly in the event they need to be absent for family or medical 
issues. We also understand the concerns of employers when administering 
certain portions of the FMLA on a daily basis. The Coalition believes 
that Congress intended the Act to strike a balance between the needs of 
employees for leave for family and serious medical reasons, and the 
interests of employers to know when employees will be at their job. 
This hearing provides an ideal opportunity to examine the FMLA 15 years 
later to determine whether the law continues to meet the needs of both 
employees and employers.
I. FMLA Challenges
    The Coalition recognizes the significant contributions the FMLA has 
made to the American workplace and the millions of Americans who have 
benefited from this historic piece of legislation. The family leave 
provisions of the FMLA have been particularly successful, and employers 
have encountered very few challenges implementing the leave provisions 
as they apply to the birth or adoption of a child or the extended care 
of a sick parent or child. Further, the medical provisions of the FMLA 
generally work well in cases of planned surgery and long-term scheduled 
medical events as well as scheduled intermittent leave for recurring 
conditions. The common factor in each of the above mentioned examples 
is that in each instance, the need for leave was either foreseeable or 
scheduled in advance. While the Coalition realizes that not every need 
for leave is foreseeable or predictable, the ability of an employer to 
know ahead of time that an employee will be absent from work and to be 
able to plan for the employee's absence is crucial to the successful 
administration of the FMLA.
    Notwithstanding the FMLA's successes, employers have experienced 
challenges with the Act, in particular, the use of intermittent leave 
for chronic conditions. While Congress wisely foresaw the need for 
intermittent leave by employees to receive physical therapy, dialysis, 
or chemotherapy treatments when it passed the FMLA, the workplace 
impact of unscheduled, sporadic leave in small increments of time was 
not fully appreciated. As a result, the day-to-day administration of 
the Act has confused both employers and employees alike resulting in 
employers not being sure what leave they should grant, employees taking 
leave that is not consistent with the intent of Congress, and 
ultimately extensive litigation to resolve these disagreements.
    Employers have also struggled with the definition of what 
constitutes a serious health condition as well as with the implications 
of unscheduled intermittent leave. The intermittent leave regulations, 
coupled with the vague, and seemingly open-ended, serious health 
conditions regulations, allow employees to characterize chronic, non-
serious health conditions as FMLA leave.
    In 2007, the Coalition released a survey conducted by the Society 
for Human Resource Management (SHRM) that found more than half (51%) of 
human resource (HR) professionals have faced ``significant challenges'' 
in implementing the medical leave provisions of the FMLA. In addition, 
nearly two-thirds of HR professionals have experienced problems in 
determining when to grant ``chronic leave'' under the Act, leading to 
employee morale issues for those employees who have to cover for an 
employee on leave.\1\ The challenges of chronic leave threaten the 
integrity of this important law for those employees who truly have 
serious health conditions. For these reasons, the Coalition has 
actively supported public policies and regulatory changes that will 
strengthen the FMLA to ensure its availability to those employees 
Congress intended to cover.
---------------------------------------------------------------------------
    \1\ Society for Human Resource Management, SHRM Survey Brief: FMLA 
(2007)
---------------------------------------------------------------------------
    Much of the confusion surrounding the medical portion of the FMLA 
has been the inconsistent U.S. Department of Labor (``DOL'' or ``the 
Department'') opinion letters and Federal court decisions that have 
undermined the original intent of the Act. Consequently, the Coalition 
has repeatedly urged DOL and Congress to strengthen the FMLA 
regulations by clarifying the medical leave interpretations and other 
FMLA administrative complexities which are causing problems in the 
workplace.
II. DOL's Proposed FMLA Regulation
    On February 11, 2008, the DOL published its long-awaited proposed 
rules to address many of the sections of the FMLA that are confusing 
for both employees and employers. The Coalition appreciates a number of 
the proposed changes put forth by the Department. It is clear that the 
DOL's suggested modifications are modest in scope, well supported by an 
extensive record, and will protect the benefits afforded to employees 
under the Act while improving FMLA administration in the workplace. In 
no way will the proposed changes jeopardize, or undermine the ability 
of an employee to take the leave intended by Congress when it passed 
the FMLA in 1993.
    The Department's proposal is the result of a lengthy and 
comprehensive review of the FMLA regulations that included numerous 
stakeholder meetings, more than 15,000 public comments from employers, 
employees, and health care providers, numerous congressional hearings, 
and much litigation. Unfortunately, the proposed rule does not appear 
to adequately address the challenges employers have experienced in 
determining the definition of a serious health condition under the 
current regulations--which will mean that this issue will require 
attention at a future date. Despite this omission, the Coalition 
believes the DOL's proposal represents a good first step--and we 
support this reasonable approach for the following reasons:
    First, the Coalition supports the DOL's proposed changes to the 
medical certification process so that ``vague, ambiguous and non-
responsive'' answers may be clarified. As this process is the 
foundation of the medical leave determination, it is imperative that as 
much information as possible, consistent with requirements for 
maintaining privacy, be collected. The more an employer understands 
about an employee's condition, the better they can accommodate that 
employee's needs. Providing a medical provider with a list of necessary 
job functions and asking him or her to certify the employee is fit for 
duty will ensure the health and safety of the employee as well as his 
or her colleagues. In addition, granting an employer the ability to ask 
clarifying questions of the health care provider consistent with the 
Health Insurance Portability and Accountability Act, the Americans with 
Disabilities Act and other Federal statues, will ensure prompter FMLA 
leave request reviews and decrease costs for both employers and 
employees. We also join with many health care providers and 
associations of health care providers who have expressed concerns about 
the current WH-380 medical certification form and commend the 
Department for proposing a new form that will be easier for health care 
providers to use and will likewise assist employers in making proper 
determinations about the granting of FMLA leave.
    Second, the proposed rule provides a practical approach to 
requirements for the employee to provide notice of when they will be 
using FMLA leave and ends the ability of an employee to report his or 
her failure to show up for work for up to two days with no notice as 
FMLA leave (absent a severe emergency situation). By requiring a 
qualified employee to make a ``reasonable effort'' to contact his or 
her employer before an assigned shift, employers can more adequately 
staff and operate their businesses. Additionally, the Coalition 
believes that this proposed change will alleviate much of the workplace 
friction by providing employees and employers alike with clearer 
guidance as to how and when unscheduled intermittent leave may be 
requested. This provision will also benefit those employees who are at 
the job and would otherwise have had to cover for an employee who was 
taking leave that would not have been scheduled, or may not be 
appropriate.
    The Coalition also supports the DOL's proposal regarding 
substitution of paid leave. The Coalition believes that DOL's proposal 
to allow employers to enforce the terms and conditions for when 
substitution of paid leave occurs when an employee uses FMLA leave is 
consistent with the main statutory goal of the FMLA, namely that 
nothing in the FMLA be construed so that it would discourage employers 
from adopting or retaining more generous leave policies. The Coalition 
believes that inherent in the provision of paid leave voluntarily 
provided by employers are the terms and conditions associated with 
utilizing such paid leave. Thus, leave is not available for employee 
use unless the terms and conditions for its use are satisfied. Such an 
interpretation is consistent with DOL's opinion letters on this topic, 
as well as the statute, which specifically provides for an unpaid leave 
entitlement unless accrued leave is available to substitute.
    Finally, the NCPFL believes the proposed rule could have done more 
to address the issue of defining serious health conditions by 
clarifying the ``objective test'' of more than three days incapacity 
plus treatment and by increasing the minimum increment of intermittent 
leave allowed to half or full days. Either or both of these changes 
would likely have reduced the use of medical leave that is inconsistent 
with the act, and would have helped employers determine whether an FMLA 
leave request is legitimate. Increasing the increments of intermittent 
leave would have reduced the time spent calculating FMLA time used and 
accrued, and also served as a disincentive to employees using 
intermittent leave to cover for tardiness.
    These concerns do not override our strong support for these 
proposed changes. The NCPFL hopes that Congress will allow DOL to 
proceed with the regulatory changes to the FMLA which will restore the 
balance Congress intended between employers' needs for a productive 
workforce and workers' needs for time to attend to important family and 
medical issues.
III. Support for FMLA Regulatory Changes
    A recent poll conducted on behalf of the Coalition indicated that 
American voters strongly support efforts to modify the FMLA. The 
national survey was conducted by the polling company(tm), inc. and 
represents the results of a nationwide telephone survey of 1,000 
registered voters from February 7-12, 2008. The survey has a margin of 
error (plus/minus) 3.1%.
    Among the survey's key findings:
    Many Americans Recognize Potential for FMLA Misuse * * * A majority 
(59%) of voters said there was a ``serious'' potential for FMLA misuse. 
And nearly half (46%) of those surveyed could cite at least one 
occasion where they suspected ``a fellow employee who claimed to be 
taking time off for family or medical reasons was really using it for 
something else.''
    One in Three Workers Say Unscheduled Leave Makes Their Jobs Harder 
* * * Just over one-third (34%) of survey respondents said sporadic, 
unannounced leave by co-workers--a major issue under current FMLA 
rules--makes them less productive on the job.
    The survey results also indicated strong levels of support for many 
of the concepts embodied in the proposed rule changes, including:
    88% of Americans support ``requiring employees who wish to take 
FMLA leave to get their `serious medical conditions' recertified by a 
health care provider once a year or every six months. Currently 
employees never have to return to their doctors for check-ups or to get 
recertified.
    73% of voters approved of ``allowing employers to speak directly to 
a worker's health care provider when he or she is ready to return to 
work after taking FMLA leave to ensure that the worker is able to 
resume working and will not pose a danger either to himself or herself 
or to other employees.''
    69% of voters approved of ``strengthening the notification 
requirements so that employees are required to give reasonable notice 
before taking unscheduled leave under the FMLA.''
IV. FMLA Expansion
    As mentioned earlier, the NCPFL supports both the spirit and intent 
of the Family and Medical Leave Act and recognizes the many Americans 
who have benefited from this important law. In order to preserve the 
integrity of the law's leave protections for family and medical 
reasons, the medical leave provisions of the Act and the corresponding 
regulations must be clarified to ensure that the Act benefits those 
employees who need it most. While we understand that some members of 
Congress are interested in providing additional work flexibility to 
employees and their families, or providing these benefits to more 
employees and their families, the Coalition believes that the FMLA 
regulations need to be improved before expansion of the Act or other 
leave mandates are considered. Expanding a law that is not working 
properly will only exacerbate the problems currently experienced by 
both employers and employees. Similarly, we are opposed to amending the 
FMLA to make leave paid. We believe this will create a strong incentive 
for employees to look for opportunities to take leave that is not 
consistent with the balance of interests established in the Act.
V. Conclusion
    Regulatory changes to the Family and Medical Leave Act proposed by 
the Department of Labor will strengthen a law that is critically 
important to employees and their families. At the same time, more work 
needs to be done to clarify other areas of the FMLA's implementing 
regulations. The Coalition appreciates the spotlight Congress has 
placed on this important policy that has benefitted so many. We look 
forward to working with you, and members of this Committee, to ensure 
the needs of our ever-changing workforce and their employers are met by 
the FMLA.
                                 ______
                                 
    [Statement of the Retail Industry Leaders Association 
follows:]

     Prepared Statement of the Retail Industry Leaders Association

    RILA supports the spirit and intent of the Family and Medical Leave 
Act (FMLA) and recognizes the challenges employees face in balancing 
their work and families with their desire to feel secure in their jobs 
should they need to be absent for family or medical issues. We also 
understand employer concerns with administering the FMLA on a daily 
basis. RILA believes the Act's current administrative complexity should 
be addressed and opposes efforts to expand its scope to include 
additional employer mandates beyond the Act's original intent.
    The Retail Industry Leaders Association promotes consumer choice 
and economic freedom through public policy and industry operational 
excellence. Our members include the largest and fastest growing 
companies in the retail industry--retailers, product manufacturers and 
service suppliers--which together account for more than $1.5 trillion 
in annual sales. RILA members provide millions of jobs and operate more 
than 100,000 stores, manufacturing facilities and distribution centers 
domestically and abroad.
    As Congress examines this important issue, employees who need it 
must continue to be able to enjoy the intended benefits of the FMLA. 
Workers must be able to take time off for the birth or adoption of a 
child, to take care of a family member with a serious illness or seek 
treatment themselves when seriously ill. The FMLA was never intended to 
turn full-time jobs into part-time jobs. It was never intended to allow 
employees to take sporadic leave without any notification. It was never 
intended to unfairly burden colleagues forced to cover the 
unpredictable absences of their co-workers.
    The proposed changes to the FMLA regulations will improve a law 
that has helped millions of American workers and their families. 
Despite an ever-changing workforce, the DOL has not updated the FMLA 
since the implementing rules went into effect 15 years ago. While the 
family leave sections of the law are generally working well, some of 
the medical leave sections are causing confusion in the workplace. The 
most difficult parts of the law for retail managers to work with are 1) 
the definition of a serious health condition, and 2) unscheduled, 
intermittent leave. Clear guidance on both of these issues would 
greatly enhance employer-employee relations and it is important for 
RILA that benefits afforded employees under the FMLA remain secure.
                                 ______
                                 
    [Letter, dated April 11, 2008, from the Society for Human 
Resource Management to the Department of Labor, may be obtained 
from the following Internet address:]

                          http://www.shrm.org/

                                 ______
                                 
    [Whereupon, at 12:41 p.m., the subcommittee was adjourned.]

                                 
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