[Senate Hearing 110-851]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-851
 
WRITING THE NEXT CHAPTER OF THE FAMILY AND MEDICAL LEAVE ACT: BUILDING 
              ON A 15-YEAR HISTORY OF SUPPORT FOR WORKERS

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

                                HEARING

                               BEFORE THE

                 SUBCOMMITTEE ON CHILDREN AND FAMILIES

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                                   ON

    EXAMINING THE FAMILY AND MEDICAL LEAVE ACT (FMLA) (P.L. 103-3), 
          FOCUSING ON A 15-YEAR HISTORY OF SUPPORT FOR WORKERS

                               __________

                           FEBRUARY 13, 2008

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


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                                 senate



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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa                     JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland        LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico            RICHARD BURR, North Carolina
PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island              LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York     ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois               PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont         WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma

           J. Michael Myers, Staff Director and Chief Counsel

                 Ilyse Schuman, Minority Staff Director

                                  (ii)



                            C O N T E N T S

                               __________

                               STATEMENTS

                      WEDNESDAY, FEBRUARY 13, 2008

                                                                   Page
Dodd, Hon. Christopher J., a U.S. Senator from the State of 
  Connecticut, opening statement.................................     1
Kennedy, Hon. Edward M., Chairman, Committee on Health, 
  Education, Labor, and Pensions, opening statement..............     5
    Prepared statement...........................................     6
Murray, Hon. Patty, a U.S. Senator from the State of Washington, 
  statement......................................................     7
    Prepared statement...........................................     8
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  statement......................................................    10
    Prepared statement...........................................    11
Lipnic, Victoria, Assistant Secretary, U.S. Department of Labor, 
  Washington, DC.................................................    14
    Prepared statement...........................................    17
Ness, Debra, President, National Partnership for Women and 
  Families.......................................................    32
    Prepared statement...........................................    34
Reid, Marcel, President, DC ACORN, Washington, DC................    39
    Prepared statement...........................................    40
Grimm, Kristen, President, Spitfire Strategies, Washington, DC...    41
    Prepared statement...........................................    43
Elliott, Katheryn, SPHR, Assistant Director, Employee Relations, 
  Central Michigan University, Mount Pleasant, MI................    45
    Prepared statement...........................................    47

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Senator Clinton..............................................    61
    Senator Alexander............................................    61
    Retail Industry Leaders Association (RILA)...................    62
    Matthew Melmed, Executive Director, Zero to Three............    63
    Joe Solmonese, President, Human Rights Campaign..............    65
    MomsRising...................................................    67
    American Civil Liberties Union (ACLU)........................    68
    Jason A. Straczewski, Director, Employment and Labor Policy, 
      National Association of Manufacturers (NAM)................    69
    College and University Professional Association for Human 
      Resources (CUPA-HR)........................................    76
    Letter to Victoria Lipnic....................................    82
    Questions of Senator Kennedy for Victoria Lipnic.............    82
    Questions of Senator Dodd for Victoria Lipnic................    85

                                 (iii)



WRITING THE NEXT CHAPTER OF THE FAMILY AND MEDICAL LEAVE ACT: BUILDING 
              ON A 15-YEAR HISTORY OF SUPPORT FOR WORKERS

                              ----------                              


                      WEDNESDAY, FEBRUARY 13, 2008

                                       U.S. Senate,
Subcommittee on Children and Families Committee on Health, 
                            Education, Labor, and Pensions,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 3:01 p.m. in 
Room SD-430, Dirksen Senate Office Building, Hon. Christopher 
Dodd, chairman of the subcommittee, presiding.
    Present: Senators Dodd, Kennedy, Murray, and Hatch.

                   Opening Statement of Senator Dodd

    Senator Dodd. The subcommittee will come to order.
    I'm going to make a brief opening statement and turn to my 
Chairman of this full committee, Senator Kennedy has done so 
much on this issue, and so many others.
    Senator Alexander, I believe, is going to make--there's a 
chance of him coming over? It was unclear, do you know? Senator 
Hatch is coming, so, OK, good.
    We'll get underway, however, because I know people have 
other schedules to meet. Normally, I'd be waiting for a member 
of the minority to be here before I'd start, and I apologize to 
any of these members for starting with the opening statement 
and moving along so we don't end up delaying the hearing too 
long.
    Let me thank all of you for coming here this afternoon to 
hear these important words on the Family Medical Leave Act. 
This hearing is entitled, ``Writing the Next Chapter of Family 
Medical Leave: Building on 15 Years of History in Support of 
Working Families.''
    As you might know, this month, the Family Medical Leave Act 
will celebrate its 15th birthday. In fact, the 5th of February 
1993 was the day which President Clinton, Vice President Gore, 
in the Rose Garden of the White House signed the Family Medical 
Leave Act into law. I was looking at the photographs the other 
night of that historic occasion, it was the first piece of 
legislation signed into law by the Clinton administration.
    I just mentioned upstairs--we were having a bit of a press 
conference, and I don't know if she's come back down here or 
not, yet, but that day, I'll never forget--one of the early, if 
not the earliest authors of this idea was a Congresswoman from 
Colorado named Pat Schroeder. I'll never forget that day, 
because I was asked to be on the steps of the Rose Garden with 
the President and the Vice President and there was an audience 
fathered to witness the signing. Sitting in the audience was 
Pat Schroeder--she should have been up on the stairs as the 
person who really created this idea, in so many ways.
    I've always regretted deeply that she wasn't there that 
day. I don't fault the Clinton administration--it was the first 
bill-signing ceremony they had, they were learning their way 
along. But Pat Schroeder--anyone ever talks about this issue 
and--while I'm proud to have been the author of it in the 
Senate of the United States, Pat Schroeder really was the 
initial person who came up with this idea in the Congress of 
the United States and as the history books are written about 
it, she deserves incredible credit for her efforts. So, I 
wanted to make that point.
    This legislation has withstood 8 years of obstruction and 
two Presidential vetoes before it became law. Along the way, it 
was a very difficult path to follow, and I'd like to especially 
welcome and thank all of the witnesses who will provide 
testimony here today. Much of the testimony we'll hear today 
will illustrate the great need for sensible family leave 
policies that benefit both employee and employer alike.
    Let me briefly share with you just one of the many personal 
stories that first led me to get involved in the cause of 
Family Medical Leave. When I first met Eva Binnel at my church, 
my parish in East Haddem, CT in 1989, her daughter, Jacintha, 
who shares the same birthday with me, May 27--multiple, 
multiple-handicapped child, in fact, never should have lived 
beyond the age of 3. She's broken every record, globally. She's 
now 23 years, 24 years of age--a remarkable little girl, child.
    Daughter Jacintha was in her wheelchair at Mass. She had 
been born with a rare brain disease, was fighting for her life 
in an ICU unit, in those days. Her husband asked his employer 
for time off to be at the side of his wife and Jacintha, and he 
was told to never come back to work, leaving his family without 
an income, without health insurance, and almost without hope.
    I met them in my parish, was deeply impressed, and decided 
that too many people probably were going through what they were 
going through and decided we could do better in this country.
    Sadly, before the passage of Family Medical Leave, stories 
like Eva Binnel's and her husband's were a fact of working life 
for so many millions of Americans throughout this country of 
ours.
    Fortunately, doctors were able to save Eva's daughter, 
she's still alive today, remarkably, after all she's been 
through. But the sad truth is, that her family had no legal 
protection against her husband's firing.
    The Family Medical Leave Act has been essential to 
protecting families like hers since its passage. More than 60 
million Americans have used their right to time off so they can 
watch over a newborn or adopted child, help a parent through an 
illness, or get better themselves, knowing their job will be 
there when they return.
    We've heard hundreds of thousands of stories about how 
Family Medical Leave has helped workers and their families. 
Children have benefited significantly. When parents can be 
there for their sick children, they recover faster, avoid more 
serious illnesses and stay healthier.
    I'll never forget, this very hearing room, listening to C. 
Everett Coop, the Surgeon General under Ronald Reagan, a 
pediatric surgeon by training, testifying about the importance 
of the Family Medical Leave Act and what a difference it made 
in children who could have a parent or a family member present 
during periods of recovery. They just exponentially recovered 
as a result of having a family member around. I always have 
appreciated immensely, Dr. Coop's testimony for this committee, 
which helped us tremendously in convincing people who were 
reluctant to support the legislation.
    Family Leave encourages mothers to breastfeed longer, and 
provides more time for parent-child interaction, fostering 
positive emotional development of children.
    At the same time, it has been a safeguard for families, 
FMLA has been good for businesses, as well, with lower turnover 
and a boost of morale, retention rates, productivity rates--90 
percent of employers told the Department of Labor in 2000 that 
they had a neutral or positive effect on the profits of their 
company. Those gains for health, for families, and for 
employers are well-worth noting, as we mark this important 
anniversary of 15 years.
    But the true reason for celebrating anniversaries is not to 
look back, of course, but to look forward. When it comes to 
family leave in America, there's still so much to do.
    First, we have to protect the gains we've made, and that's 
why I'm concerned about the proposed Department of Labor 
regulations, that may put unnecessary roadblocks in the way of 
workers seeking the leave they've earned and deserve. Among 
other changes to FMLA, the proposed rules would prevent 
employees from calling in to up to 2 days--before an absence, a 
critical protection for workers facing medical emergencies. 
After all, medical emergencies aren't planned in advance.
    The potential regulations could also throw up another 
bureaucratic roadblock, by requiring workers to show proof of 
their medical conditions at least twice a year, even if those 
conditions are lifetime and permanent. That is especially 
difficult for workers who may not have health insurance.
    Finally, it's essential that the new regulations not weaken 
guarantees to the relatives of wounded members of our Armed 
Forces, because the care of loved ones has been shown to be 
vital to service members' recoveries.
    In sum, the Federal Government ought to be doing everything 
it can to make it easier for workers to take necessary time off 
to support their families, help their children, and provide 
critical care for a loved one, and not harder to do so. In 
examining these DOL proposals, I would rather make sure that we 
continue to do just that.
    But even as we secure the FML protections that so many 
families have come to count on, we need to ensure that they 
extend to all families, no matter what their income. No one of 
any income should be forced, in a time of crisis, to make the 
impossible choice between work and family. But the truth is 
that millions who have earned family medical leave can't afford 
it. In fact, over 80 percent of the people who have not taken 
family and medical leave will tell you they have not done so 
because of the financial burdens that they face, their 
inability to take that time because of the loss of revenue 
coming into their families. For every worker who can weather a 
day without pay, three more can't afford the loss. I believe 
that they deserve paid leave.
    Why do we offer no paid leave as a nation? When the 
European standard is 10 paid months? Why are we one of only 
four countries in the world to deny paid maternity leave? 
Leaving us in the company of Swaziland, Liberia and Papua New 
Guinea?
    We also lag behind in paternity leave, 66 countries ensure 
that fathers either receive paid paternity leave, or have the 
right to paid parental leave. Thirty-one of these countries 
offer 14 or more weeks of paid leave. The United States 
guarantees fathers neither paid paternity, nor paid parental 
leave.
    It's high time we bring paid family leave to America, at 
least 8 weeks is what we're suggesting. I've introduced 
legislation to secure just that, and will be working my hardest 
to ensure that it gets passed. If the past is any guide, we'll 
likely have another long struggle on our hands, but we can 
remember what history has shown us--a good idea is worth it.
    Let me also mention Ted Stevens, who is my co-sponsor of 
this effort. I've always sought bipartisan support for these 
efforts, and I want to thank the Senator from Alaska for 
joining in this effort of a paid leave program.
    Without further comment from me, I'd like to briefly 
introduce all of our witnesses, and then quickly turn to my 
colleagues here, Senator Kennedy and Senator Murray. Senator 
Murray was working on these issues long before she got to the 
Senate and had a wonderful history in the Washington 
legislature of fighting for these very issues herself. In fact, 
I recall when she arrived here, saying she wanted to get 
involved--these were the issues that she cared most about in 
the State legislature and wanted to continue her work here in 
the Senate on it.
    Senator Murray. I will tell you, it was the first debate 
and vote I took part in as a U.S. Senator, so I was very proud 
of that.
    Senator Dodd. Yes, I remember that, as well.
    I want to thank Assistant Secretary Victoria Lipnic for 
being with us--thank you very much, Victoria, for being here 
today--who oversees the administration of FMLA at the 
Department of Labor.
    Debra Ness, a wonderful friend and person I've worked with 
over the years, and on so many issues, who's President of the 
National Partnership for Women and Families, the organization 
that led to the creation and passage of the very act we're 
talking about today.
    Marcel Reid from the DC ACORN will share her personal story 
about FMLA, and Kristen Grimm, President of the Spitfire 
Strategies, whose small firm provides paid leave and unpaid 
leave, although not required to do so, under FMLA, and has got 
a great story to remind everyone about the values of this, and 
I appreciate immensely her being with us.
    Kathie Elliott, for sharing her perspective from experience 
at the nexus of human resources and government. I look forward 
to hearing from all of you in this informative hearing this 
afternoon.
    Before I do that, let me turn to the Chairman of the full 
committee. Again, as I said upstairs, none of this would have 
ever happened without Senator Kennedy. That could be said about 
literally hundreds of pieces of legislation over the last 
number of decades. Without his efforts and support and backing 
and ideas, so many of these great ideas never, ever, ever would 
have become the law of the land. It just seems almost 
superficial, and it's hard to come up with the words, as rich 
as our language is, to adequately describe the impact this one 
human being has made in the lives of millions and millions of 
people, both at home and abroad.
    Senator, we thank you immensely. I thank you, personally. 
It never would have happened without you, and I thank you 
immensely for that.

                  Opening Statement of Senator Kennedy

    Senator Kennedy. Thank you so much, Senator Dodd, for 
having this hearing, and for your years of leadership. I find 
that you have new emphasis, new spirit, new life in your 
statements, now that Grace and Christina--two young Dodds--have 
been brought into this wonderful world.
    We thank you for giving this whole issue an additional kind 
of focus and attention. I join you in paying great tribute to 
Pat Schroeder and Debra Ness, others who are here. ACORN, who 
has been working in this area for so many years, Patty Murray 
who has been such a valued ally.
    Just a couple of points, I'll put my statement in the 
record.
    The phenomenon of a two-parent family has really 
disappeared in American life. We don't even have, sort of, a 
one-parent, effectively, family--one person at home family. 
That's a phenomenon that's taken place. There is naturally 
enormous pressure on children, and also on parents. It is, by 
and large, the single mom--sometimes the single dad--but more 
often, the single mom that is trying to take care of both the 
child and being the parent. The challenge, I believe, of 
government is how we make it easier, not how we make it more 
difficult.
    Senator Dodd and the others have given us a pathway to make 
it easier, make it more humane, make it more compassionate, 
make it more decent, make it fairer, make it more affordable, 
make it more consistent with the values of our country that 
says that we value children, and we value families. The real 
issue in question is whether we as a country, and society, are 
going to catch up with that ideal that has been stated so 
eloquently by Senator Dodd, and others--bipartisan--who have 
supported the Family and Medical Leave.
    Our concern about the Labor Department is they make it more 
complicated, more difficult, more costly, more expensive, more 
troublesome, bothersome. I have a son who's a chronic 
asthmatic, Patrick, who's a Congressman, and has been a chronic 
asthmatic since the day he was born, and continues to be. Why 
he should have to go down, several times a year, to get a 
doctor's report to say that he's a chronic asthmatic? Time, 
expense, the purpose of it is to discourage people. We can't 
have that discouragement, we have to find ways to encourage, 
bring people to a more decent and fair awareness and 
understanding of this legislation.
    Congratulations, Senator Dodd. This is enormously 
important, and we want to give you the assurances, the Chairman 
of the committee, that we will do everything with you, Senator 
Murray, others, to move this legislation, to mark it up. We'll 
work with our leadership to get it out on the floor of the 
Senate. We're not here just to have a hearing, we're here for 
action. I know that's your commitment, that's certainly ours, 
and we'll work very closely with you to get it.
    Thank you.
    [The prepared statement of Senator Kennedy follows:]

                 Prepared Statement of Senator Kennedy

    I commend Senator Dodd for holding this important hearing. 
Striking the right balance between work and family is never 
easy. But it's especially difficult when serious illness or a 
medical emergency strikes.
    In these turbulent economic times, workers face great 
challenges. More and more families are already strapped for 
cash and time, and taking time off from work to deal with a 
serious illness of family members can threaten their jobs. 
Countless American families depend on a second income to keep a 
roof over their heads, food on the table, and heat in their 
homes. Fewer and fewer families can afford to have a parent 
stay home with their children, and caregiving is even more 
difficult for single parents who constantly have to juggle the 
demands of work and family.
    It's not just families with children who are struggling. 
Many working parents are part of the ``sandwich generation''--
they're working full-time, and struggling to care for both 
their children and their own elderly parents. They're stressed 
to the breaking point trying to balance the jobs they need and 
the families they love.
    I learned first-hand just how difficult these crises can be 
when my son was diagnosed with cancer. Months of difficult 
treatment followed, and he had the good fortune to become 
cancer-free and return to a full life. I was fortunate enough 
to be able to take the time I needed to be there for him. Many 
people are not so lucky.
    Fifteen years ago, we won a major victory by enacting the 
Family and Medical Leave Act. That landmark law passed with bi-
partisan support, and it has enabled more than 60 million 
Americans to take time off when they need it most without the 
fear of losing their jobs.
    The act has been a huge success for both workers and 
employers. It lets workers get treatment for their own or a 
family member's serious medical condition, while keeping the 
job they need to pay for that treatment. As one employee told 
the Department of Labor, ``because of the act, I was able to 
keep my parents out of nursing homes and still keep my job to 
support them later. This is the best thing you can do for 
working families around the country.''
    The act has also provided important benefits to employers 
by allowing them to keep good workers. Employees feel increased 
loyalty to their company, and businesses say that workers with 
such leave are more productive and motivated, with less 
turnover and better workplace morale.
    In the face of all this progress, however, the Bush 
administration last week took a step backward, announcing new 
regulations that will limit workers' ability to use such 
medical leave when they need it. The regulations place stricter 
requirements on when employees can request leave in advance, 
and shorten the window in which they can claim their rights 
after an emergency. As a result, many workers entitled to this 
leave are likely to have their requests unfairly denied.
    The changes also make it more difficult for people to 
return to work when their health crisis has passed. They 
increase the amount of private medical information that 
employers can demand before employees can come back to work, 
and they require frequent certifications from workers taking 
periodic leave.
    They also impose onerous new paperwork on both workers and 
health providers. Requiring workers with chronic conditions to 
have a doctor recertify twice a year that they suffer from a 
serious health condition is an extra burden for workers, 
doctors and employers. In addition, workers will have to 
shoulder the additional cost of unneeded doctor's appointments.
    The new regulations also risk diminishing the enforcement 
of the act's protections. By allowing private settlements 
without any oversight by the Department of Labor or the courts, 
vulnerable workers can be unfairly persuaded to give up their 
rights.
    There is no basis for such changes. The act has worked well 
in helping employees meet their health care needs.
    The only real problem with the act is that its protections 
don't go far enough. One out of 3 workers is not eligible, and 
the current law only guarantees unpaid leave. Since many 
working men and women can't afford to miss a paycheck, they 
don't take family and medical leave when they need it.
    The leave for workers for serious health conditions should 
be paid leave, as proposed by Senator Dodd in his Family Leave 
Insurance Act. We must also enact paid sick days, so that 
employees can recover from brief illnesses or obtain needed 
preventive care. It's a sensible policy to stop the spread of 
disease, reduce costs and protect our families.
    With more and more people facing heavy demands at work and 
at home, families deserve more security, not less. Today's 
hearing will explore how we can preserve the protections of the 
Family and Medical Leave Act and build on them to benefit all 
working families. I welcome today's witnesses, and I look 
forward to their insights on this pressing issue for the 
Nation's families.
    Senator Dodd. Thanks very much, Senator.
    Senator Murray has a statement, as well, and we welcome 
your words and your support. More importantly, your support 
over the years, and your interest in the subject.

                      Statement of Senator Murray

    Senator Murray. Well, thank you very much, Mr. Chairman--it 
really is an honor for me to join you and Senator Kennedy on an 
issue that is so important to so many people.
    The principles that led you all to the floor of the U.S. 
Senate 15 years ago to win this to begin with are as important 
today as they were then. That is, that no one should have to 
choose between their job and their family at a critical time 
and issues that they're facing at home. That balance, and that 
moral ability to be able to take care of your family is 
something that our country should honor and cherish and 
support. That's really what the Family and Medical Leave is all 
about.
    I am concerned about what I'm hearing are rules and 
regulations that are really being put out there as a way to 
inhibit people from doing this, because I think the role of 
government ought to be to make sure that families are 
supported, for all the right reasons, that both of you talked 
about. I think we ought to be looking at how we expand this 
successful law so that more families can get that same kind of 
support and hope that they need to be able to work in today's 
world, and raise their families, too.
    We certainly need people in the workforce. We certainly 
need people raising healthy families. The more we can do to 
support that in better ways, I think, is critically important.
    So, thank you very much for your leadership, and I look 
forward to working with you to move to do what we can to expand 
and make better the law that you worked so hard to pass 15 
years ago.
    [The prepared statement of Senator Murray follows:]

                  Prepared Statement of Senator Murray

    Mr. Chairman, thank you for calling this hearing. The 
Family and Medical Leave Act is an issue that is vital to our 
working families.
    You're a great advocate for working families in the Senate, 
and I appreciate your efforts to get the discussion going about 
how we can build on the progress we've made so far.
    As we celebrate the 15th anniversary of FMLA--and 
especially as we discuss some administrative changes proposed 
by the Department of Labor--it's important to understand the 
real value of this legislation. FMLA provides more than job 
security during a time of personal or family illness. It gives 
people the peace of mind they need to be successful workers and 
caregivers. And when the working families of our country are 
more stable, so are our communities, our businesses, and our 
economy.
    Fifteen years after the law's enactment--and despite dire 
predictions from businesses--our experience tells us that FMLA 
has worked for families and employers.
    We saw an economic boom in the 1990s. And workers still 
tell us how important it is not to have to choose between their 
jobs, and their health, or their families during hard times. 
It's hard to put a price tag on that kind of value. But 
unfortunately, it appears the Administration is trying to do 
just that.
    I am disappointed that once again, the Labor Department has 
taken a position that seems to be tipping the scales in favor 
of employers over workers and their families. And I'm concerned 
that some of its proposed administrative rule changes would 
impose unnecessary burdens on workers.
    At a time when more and more working families depend on 
dual incomes--and as more people find themselves caring for 
aging parents in addition to children--family and medical leave 
should be expanded, not narrowed.
    I am looking forward to hearing from Assistant Secretary 
Lipnic about the Department's proposal. I'm especially 
interested to hear the Administration's explanation of how the 
proposal protects workers' rights rather than restricting them.
    I believe FMLA was a great start in 1993. And I think we're 
ready to move to the next step. More needs to be done to help 
working families better balance their work and family 
obligations. Even though the ability to use family and medical 
leave is critical, not all workers are covered under the 
current law. And of course, no one is receiving paid leave.
    Our government should be moving toward covering workers at 
smaller companies or those who work part-time and aren't 
eligible under the current law. As a society, I believe we need 
to move toward paid family and medical leave as a norm and not 
the exception.
    I am always disheartened to hear that our country stands 
alone among its industrial partners in not guaranteeing some 
form of paid leave to workers. It is my hope that in the near 
future that statistic will soon become a part of our Nation's 
past.
    Some of our States have already made strides in securing 
paid leave for workers. I am proud to say that my home State of 
Washington recently passed a bill that will provide $250 a week 
for 5 weeks to eligible workers who use their family leave when 
they become new parents.
    That's real progress I hope we can mirror at the Federal 
level.
    I was proud to co-sponsor your bill, Mr. Chairman, which 
would go even further, providing up to 8 weeks of leave for 
workers who use family and medical leave. It is definitely 
another step in the right direction.
    Working families need us to be their voice and make them 
our first priority. And that's why we're here today.
    I look forward to hearing from our witnesses about the 
value of family and medical leave to working families, 
businesses, and our communities.
    Thank you.
    Senator Dodd. Thank you, Senator, very, very much. I 
appreciate that immensely.
    We've been joined by my good friend and colleague from 
Utah, Senator Hatch.
    I was making a point--I want to make reference to that, on 
the paid leave proposal idea, I'm very grateful to Senator Ted 
Stevens, who's a lead co-sponsor of that idea.
    I should have mentioned--I talked about Teddy, obviously, 
and his work, and Patty Murray--Senator Murray--and Pat 
Schroeder. But the legislation also wouldn't have happened had 
it not been for Dan Coates, then a Senator from Indiana, Kit 
Bond, a Senator from Missouri and Arlen Specter who were very 
important.
    This wasn't a partisan battle, it was a battle with the 
White House at the time. But I had terrific support from the 
Republican side of the aisle on this issue, as well, and so 
I've always been grateful. Dan Coates has left the Senate years 
ago, but Kit Bond is still here, Arlen Specter is still here--
there were others, as well, but those were the ones that played 
an instrumental role in drafting the legislation. It's 
important that we go back 15 years now, in talking about those 
who were involved initially, here. Those names need to be 
mentioned, as well, they made a huge difference in this 
legislation becoming the law of the land.
    Senator Hatch, we're pleased to have you with us. Do you 
have an opening comment or statement you want to make before we 
hear from our witnesses?

                       Statement of Senator Hatch

    Senator Hatch. Well, I'd be happy to say a few words, if I 
can.
    Senator Dodd. Yes, certainly, please.
    Senator Hatch. Thank you, so much. It's great to be with 
you, and the other Senators here on the dais who have worked 
long and hard on this. I want to thank you for convening this 
hearing. I want to welcome each of our witnesses here today, 
and I look forward to hearing your testimony.
    Mr. Chairman, I think we can all agree with last week's 
Wall Street Journal editorial that said,

          ``Few laws are so universally acclaimed as the 1993 
        Family and Medical Leave Act. It's an excellent example 
        of how we, as a Nation, have adapted to the demands of 
        our changing workforce.''

    Another timely example in the Senate's recent action to 
expand the FMLA to cover the needs of families who need leave 
to care for our sick and wounded service men and women. This 
was the first-ever expansion of FMLA, the product of a 
bipartisan Commission, and bipartisan action here in Congress. 
Together, we recognize that the needs of military families have 
changed over the past few years, and we took action to help 
them.
    I'm pleased to see that the executive branch is moving 
forward with implementing regulations on the so-called 
``wounded warriors'' additions to FMLA. In its proposed rule 
package published on Monday, the Department of Labor asked for 
public comments on a variety of issues related to the 
implementation of the new statutory provisions that President 
Bush signed into law on January 28. I think the Department 
should be commended for recognizing that the military families 
and their employers are anxiously awaiting these rules, while 
also taking the necessary steps to ensure that its forthcoming 
final rules will be the correct ones.
    Nothing causes so much confusion within a regulated 
community than an agency's constant tweaking and changing of 
its rules. If we want these new provisions to work, and we want 
them to work well for our military families and for the people 
who issue their paychecks, then we need to let the Department 
gather and consider comments from the public before they go 
ahead with their final regulations. This is going to take time, 
so I urge the Department to make publishing a final rule its 
top priority.
    As for other items in the proposed rules package, what we 
have before us is the result of a deliberative process, one 
that included a thorough examination of the current 
regulations, and extensive effort for input from a wide range 
of stakeholders and intensive consultations with Members of 
Congress.
    Mr. Chairman, I ask unanimous consent that a copy of the 
proposed rule be included in the hearing record.
    Senator Dodd. Without objection.
    Senator Hatch. Now, a critical component of this 
deliberative process was the Department's report last year 
about how the FMLA and its related regulations were functioning 
in the workplace. It includes a chapter of anecdotes from 
people whose lives were made better because the FMLA exists.
    With the FMLA, they were able to cope with their own, or a 
family member's medical crisis while enjoying the security that 
comes from knowing that their health insurance is continuing, 
and their job awaits them when they return.
    For employers, it appears FMLA is generally working well, 
especially where employees who are taking leave to care for a 
newborn child or other planned absences. However, some 
employers and others expressed frustration that the challenges 
of running time-sensitive workplaces while trying to comply 
with FMLA rules.
    Now, I have other remarks, but I think I'll just put them 
all in the record at this point.

    [Editor's Note: Due to the high cost of printing, 
previously published materials are not reprinted. The 
information previously referred to can be found at http://
www.dol.gov/esa/whd/FMLA2007FederalRegisterNotice/07-3102
.pdf (Family and Medical Leave Act Regulations--A report on the 
Department of Labor's Request for Information 2007 Update) and 
http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf (Monday, 
February 11, 2008--29 CFR Part 825: The Family and Medical 
Leave Act of 1993; Proposed Rule)]

    [The prepared statement of Senator Hatch follows:]

                  Prepared Statement of Senator Hatch

    Thank you, Mr. Chairman for convening this hearing on the 
Family Medical Leave Act. I want to add my welcome to each of 
our witnesses today, and look forward to hearing your 
testimony.
    Mr. Chairman, I think we can all agree with last weeks Wall 
Street Journal editorial that said, ``Few laws are so 
universally acclaimed as the 1993 Family and Medical Leave 
Act.'' It's an excellent example of how we as a nation have 
adapted to the demands of our changing workforce.
    Another timely example is the Senate's recent action to 
expand the FMLA to cover the needs of families who need leave 
to care for our sick and wounded servicemen and women. This was 
the first-ever expansion of the FMLA--the product of a 
bipartisan commission, and bipartisan action in the Congress. 
Together, we recognized that the needs of military families 
have changed in the past few years, and we took action to help 
them.
    I am pleased to see that the Executive Branch is moving 
forward with implementing regulations on the so-called wounded 
warriors additions to FMLA. In its proposed rule package 
published on Monday, the Department of Labor asked for public 
comments on a variety of issues related to the implementation 
of the new statutory provisions that President Bush signed into 
law on January 28th. The Department is to be commended for 
recognizing that military families and their employers are 
anxiously awaiting these rules--while also taking the necessary 
steps to ensure that its forthcoming final rules will be the 
correct ones. Nothing causes so much confusion within a 
regulated community than an agency's constant tweaking and 
changing of its rules. If we want these new provisions to work 
well for our military families and for the people who issue 
their paychecks, then we need to let the Department gather and 
consider comments from the public before they go ahead with 
final regulations. This will take time, and I urge the 
Department to make publishing a final rule its top priority.
    As for the other items in the proposed rule package, what 
we have before us is the result of a deliberative process, one 
that included a thorough examination of the current 
regulations, an extensive effort for input from a wide range of 
stakeholders, and intensive consultations with the Congress. 
Mr. Chairman, I ask for unanimous consent that a copy of the 
proposed rule be included in the hearing record.
    A critical component of this deliberative process was the 
Department's report last year about how the FMLA and its 
related regulations were functioning in the workplace. It 
includes a chapter of anecdotes from people whose lives were 
made better because the FMLA exists. With the FMLA they were 
able to cope with their own or a family medical crisis, while 
enjoying the security that comes from knowing that your health 
insurance is continuing, and your job awaits you when you 
return. For employers, it appears FMLA is generally working 
well, especially where employees were taking leave to care for 
a newborn child, or other planned absences. However, some 
employers and others expressed frustration at the challenges of 
running time-sensitive workplaces while trying to comply with 
the FMLA rules.
    This report is a comprehensive guide to how the FMLA is 
working in the real world, and it is so important that I ask 
for unanimous consent to have the report placed into the 
hearing record.
    Mr. Chairman, the courts too have had their say on 
interpreting the FMLA. Of these court cases, the most notable 
was the Supreme Court's 2002 decision in Ragsdale vs. Wolverine 
Worldwide that the Department overstepped its bounds by putting 
forth regulations that required employers in certain situations 
to provide more leave than what the statute allows. The Supreme 
Court viewed this as a ``categorical penalty'' on employers and 
found that it was inconsistent with the plain language of the 
statute to require an employer to provide more than the 12-week 
maximum of FMLA leave. With this proposed rule, the 
Department's regulations would be revised to reflect the 
Ragsdale decision, as well as resolve other issues arising from 
lower court decisions.
    Returning to the Labor Department's report for a moment, 
one issue made clear is that there is friction in the workplace 
over aspects of the FMLA that relate to unscheduled 
intermittent leave. Intermittent leave refers to an employee, 
who has a medical certification to take FMLA leave, and they do 
take the leave, but they don't tell their employer until after 
the fact, sometimes 2 days after the fact. In this age of cell 
phones, blackberries and the like this seems incredible to me.
    This lack of notice is a special concern for me, for 
example once you get beyond Salt Lake City, Utah is mostly 
rural and rural hospitals, police, ambulance, and fire 
departments operate with small staffs. If someone doesn't show 
up for work, with no notice, important safety concerns can 
arise. I was pleased to see that the Department is taking a 
step in the right direction by proposing a rule that would 
encourage workers to follow their employer's call-in procedures 
if they want to use FMLA leave.
    I was also pleased to see that the Department proposes to 
recognize physician assistants as health care providers in the 
context of providing ``continuing treatment'' for those taking 
FMLA leave. This will be very beneficial to my constituents in 
rural Utah, where all too often people have to travel a 
significant distance to visit a physician, while a physician's 
assistant is located right in their own small town.
    The Labor Department has proposed useful measures to update 
its regulations, but I won't go into a detailed discussion 
about them, as I am sure Assistant Secretary Lipnic will 
expound upon the major points. But I note that despite these 
proposed changes, important issues remain. For example, 
refining the definition of a ``serious health condition'' 
continues to be a contentious issue, one, which I note, we did 
not undertake to do when the 1993 legislation was drafted.
    In conclusion, I note that much has happened in the past 15 
years since we first passed FMLA and happily this includes wide 
agreement of the benefits of the act. As the FMLA has become 
part of our social landscape, covered workers and their 
employers have recognized the importance of balancing work and 
family obligations. I want to thank the Labor Department for 
its extensive work on its FMLA regulations, and for its 
consultations with my staff as you considered your regulatory 
options. In my opinion, the Department has a well-considered, 
sensible proposal, one that is certainly needed to reflect the 
lessons learned since 1993.
    Thank you Mr. Chairman.
    Senator Dodd. Well, thank you very much, Senator. We'll 
make sure they're all included, and I appreciate you raising 
the issue.
    In fact, let me--because the Senator has raised the issue 
and I--having been the author of the Family Medical Leave 
Program for the caregivers of our returning soldiers from 
Afghanistan and Iraq, passed unanimously through the Congress. 
Bob Dole, as I mentioned upstairs, had called and asked me to 
author the legislation. He called, of course, for paid leave 
program for 6 months for people. We discovered that, if I'm 
correct, 30 percent of the caregivers had had to relocate in 
order to take care of that veteran, and one out of four had 
lost jobs, as a result of providing care for that veteran 
coming back and coming out of the hospitals and needing that 
assistance and support as they sort of re-gathered their lives.
    When we passed Family Medical Leave, there were interim 
regulations that were adopted in order to get moving. I want to 
underscore the point that Senator Hatch has raised here, and 
I'd like to recommend that you consider interim regulations 
that would allow this to move forward while we wait for the 
permanent regulations. Too often that can take a lot of time, 
and obviously you've got a lot on your plate. But, in fact, we 
did interim regulations for FMLA 15 years ago, I could, I 
think, make a strong case that given the numbers of people 
we're talking about here--I think we're talking about 3,000 or 
4,000 people here, it's a very small audience of people who 
would be affected by this leave program, that maybe we could 
try and get some interim regs adopted, so this could become 
more available, more rapidly for people.
    I just raise that with you, I know you've got testimony to 
give, and let me welcome you to the committee, and thank you 
for being here, and we're anxious to hear what you have to say.

  STATEMENT OF VICTORIA A. LIPNIC, ASSISTANT SECRETARY, U.S. 
              DEPARTMENT OF LABOR, WASHINGTON, DC

    Ms. Lipnic. Mr. Chairman, Chairman Kennedy, Senator Murray, 
Senator Hatch, thank you for inviting me here today to testify 
about the Department of Labor's 15 years of experience in 
administering the Family Medical Leave Act and to discuss the 
Department's proposals, issued earlier this week, to revise the 
regulations under the FMLA. It's an honor to be with you today.
    In the time allotted, I will summarize my testimony, and 
then I'm happy to take your questions and I would ask to have 
my full testimony included in the record.
    Senator Dodd. That will be done.
    Ms. Lipnic. Thank you.
    I will say at the outset, having worked with our 
enforcement personnel over a number of years at the Labor 
Department, and talked with many around the country, I have 
observed that few laws generate the kind of support and desire 
to make sure that the law is working properly, as does the 
FMLA. Not that we don't 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 the law.
    I also want to say at the outset--as you, both you and 
Senator Hatch mentioned--that this rulemaking issued this week 
includes an extensive discussion of the leave entitlements for 
military families as sponsored by you and signed into law by 
the President on January 28.
    The Department takes its commitment to the service members 
and their families very seriously, and because one of the 
provisions providing additional FMLA leave protection cannot go 
into effect until the Secretary of Labor defines certain terms 
by regulation, we are moving as expeditiously as possible. 
We've already reached out to the Department of Defense and 
Veterans Affairs as well as groups representing service members 
and their families to obtain their input.
    We believe that our proposal will allow us to finalize 
these regulations as quickly as possible, and that is certainly 
our goal.
    To that end, the Department approached this rulemaking 
overall in a very careful, deliberative and transparent 
process. We began a review of the regulations in 2003, holding 
stakeholder meetings that year and the following year, with 
more than 20 groups representing employers and employees.
    In December 2006, we published a request for information, 
seeking public comment on many aspects of the regulations, and 
also asking for more information and data about the public's 
real-world experiences with 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 the report in June 
2007.
    Our goal in publishing that report was to do a number of 
things. First and foremost, to let the record speak for itself, 
and second, as we said at the time, to 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 
last summer to brief the HELP committee in a bipartisan 
fashion, and very much appreciated the opportunity to do that.
    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's 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 overwhelming value of the law to the workers. Second, that 
the FMLA is working well in the majority of cases, 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 our record, is 
that not all workplaces experience the FMLA in the same manner. 
There are certainly broad consensus that the FMLA is valuable 
for workers and their families. There were 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--in the 15 years since the law 
first went into effect, and the Department's first interim 
final rules went into effect--much has happened. Numerous court 
rulings examining the act and implementing regulations, 
statutory and other regulatory developments, such as passage of 
the Health Insurance Portability and Accountability Act, that 
directly or indirectly impact administration of the FMLA.
    As we said in our 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 
condition, or to care for family members recovering from those 
conditions.
    The FMLA seems to be working very well when employees are 
absent for scheduled treatments related to their own serious 
health condition, or that of a family member. Employers, 
however, often expressed frustrations 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 Request for Information report indicated 
that time sensitive industries, such as transportation 
operations, public health and safety operations and assembly 
line manufacturers may be especially impacted by employees 
taking unscheduled, intermittent FMLA leave.
    The Department also learned from the Request for 
Information 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. It also appear that, despite much work 
by the Department, many employers still do not fully understand 
their rights under the act, or the procedures they must use 
when seeking FMLA leave.
    These aspects of the Family Medical Leave Act can have 
ripple effects that result in conflicts and misunderstandings 
between employees and employers regarding designation and the 
full protection of the law. Without action to bring clarity and 
predictability for FMLA leave takers and their employers, the 
Department cautioned the RFI report that employers and 
employees may be 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 million took FMLA 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, for example 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 act. This experience is from the 
perspective of both leave-takers and employers who must manage 
the taking of leave.
    The Department is also fully aware that its proposal does 
not address all of the issues identified during its lengthy 
review of the FMLA. However, the Department believes that its 
proposal is an important step in the right direction, one that 
will allow the FMLA to function more smoothly for America's 
working families and their employers.
    I'm happy to address the specifics of the proposed rule in 
the questions and answers, and they are detailed in my written 
testimony. I want to note that we evaluated all of the comments 
to our record, ever mindful of the peace of mind that the FMLA 
brings to workers and their families, as they face important 
and often stressful situations.
    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 smooth communications among 
employees, employers and healthcare professionals, and to 
update and clarify specific, problematic areas of the current 
FMLA regulations without limiting employee access to FMLA 
leave.
    And with that, I will be happy to take your questions.
    [The prepared statement of Ms. Lipnic follows:]
                Prepared Statement of Victoria A. Lipnic
    Good morning, Chairman Dodd, Ranking Member Alexander, 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 Department believes that the FMLA is a beneficial law that has 
served Americans reasonably well. The recent expansion of the law to 
provide military family leave, along with the experience gained from 15 
years of enforcing the rights of workers to take job-protected leave, 
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 can be 
accessed at www.dol.gov/esa/whd.
    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 are moving as expeditiously as possible. 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, and 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 the taking of 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 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 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 condition or that of a family member.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
    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. However, the Department believes that its proposal is an 
important step in the right direction--one that 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 H.R. 4986, the National Defense Authorization Act 
for FY 2008, amends 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 H.R. 
4986). The provisions of H.R. 4986 providing FMLA leave to care for a 
covered servicemember became effective on January 28, 2008, when 
President Bush signed the bill into law. The provisions of H.R. 4986 
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.''
    Because a significant number of U.S. military servicemembers are 
currently on active duty or call to active duty status, the Department 
is committed to issuing final regulations under the military family 
leave provisions of H.R. 4986 as soon as possible. Even before H.R. 
4986 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 
to discuss its views on the new military leave entitlements.
    Accordingly, in the interest of ensuring the expeditious 
publication of regulations, and as it did in the initial notice of 
proposed rulemaking under the FMLA in 1993, 58 FR 13394 (Mar. 10, 
1993), 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. Because there is a need to issue regulations promptly so 
that employees and employers are aware of their respective rights and 
obligations regarding military family leave under the FMLA, 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.
      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, if finalized, should 
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 5 years or more need not be counted. 
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\ 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.
---------------------------------------------------------------------------
    \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 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\ 
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\ 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. Quite simply, 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.
---------------------------------------------------------------------------
    \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).
    \4\ Wage and Hour Opinion Letter FMLA-55 (Mar. 10, 1995).
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regulatory proposals to foster better communication between employees, 
                  employers and health care providers
    The comments to the RFI indicate that, despite the 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 2 business days to 5 
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 7 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 2 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 medical 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'').
---------------------------------------------------------------------------
    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 protections for employee 
medical 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 employee consent 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 medical privacy regulations 
are met, the proposal permits an employer to contact an employee's 
health care provider directly for purposes of clarification 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.
    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 1 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 6 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 3 
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 circum-
stances. 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. In 
addition, to the extent that some employers have chosen to provide 
their own more stringent definition of the term ``periodic'' for FMLA 
purposes, this change will provide clarity to both employees and 
employers and guards against employers making quick judgments that deny 
FMLA leave when employees otherwise should qualify for FMLA 
protections.
    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 has 
evolved. Since 1995, 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).
---------------------------------------------------------------------------
    While the Department recognizes the importance to many employees of 
paid leave, the current regulations have placed employees who 
substitute such leave for FMLA leave in a more favorable position than 
their coworkers who are taking vacation or personal leave for non-FMLA 
reasons. The proposed rule, therefore, 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, expeditiously 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.

    Senator Dodd. Thank you very much, Madame Secretary. I 
appreciate that very, very much.
    Let me thank you, first of all, I mean, there are going to 
be some criticisms, but I want to thank you for your kind 
comments about the legislation, as well. I recognize that, and 
reading over your testimony last evening, and it's not always 
been the case. We've, in the past, had some experiences when 
there was nothing good to say about this law, and as you point 
out, this has become an issue, given the number of people who 
have be able to take advantage of the law. The overwhelming 
majority of people have done so, I think, responsibly.
    They're obviously--with any law, there are going to be 
instances when people exceed what the law was designed to do, 
and striking the balance between the needs of employees and 
their responsibilities, and the need of employers and their 
responsibilities, and trying to keep that balance in place. 
That will be the subject of my questions. Since there are three 
of us here, we can move around, make it rather informal. If 
anyone wants to jump in, or add a comment or so, please do; 
Senator Hatch or Senator Murray do so, as well, so we'll try 
and make this a bit more conversational.
    One of the concerns--and you heard Senator Kennedy raise 
this in his comments--was this idea of requiring the employee 
to make it possible for the employer to inquire of the 
healthcare provider, in a sense, to corroborate, I guess. There 
are certain, really, serious issues under HIPAA. We all know--
and I just recently, calling up to check on someone in the 
hospital, I mean, they are very careful to say, ``Well, you 
know, we just got out the permission of the patient--,'' even 
someone inquiring as to their condition, was a sensitive 
subject matter.
    The employer, obviously, calling up to inquire here can 
raise serious privacy issues for people and, in a sense, could 
discourage someone, in a sense, because there may be other 
issues they don't necessarily want an employer to be aware of 
that would have nothing to do with their relationship as an 
employee and an employer.
    So, that decision, ``I'm going to take Family Medical 
Leave, but this guy wants to talk to my doctor about me, you 
know, I don't want that, I need to be there with my family, but 
this is pretty dangerous for me, in a way, so I guess I won't 
make that, I guess I'll just back up.'' I don't think any of us 
want to do that. I think again, that changes that balance.
    It's never perfect. But it seems to me, by insisting upon 
that, we're overreaching a bit, here. There have got to be 
other ways, we've inquired that there's--it's fair for, as I 
recall and you correct me here--an employer to request some 
documentation, a note or whatever else to corroborate the 
circumstances. That worries me.
    Again, there's, the second point being, again, the one that 
Senator Kennedy raised is, when you've got people with 
permanent conditions--I mentioned diabetes being one, I mean, 
this is not a condition that comes and goes. Chronic asthma--a 
long list of things. The idea that people would have to go back 
and corroborate, in a sense, that they still have asthma, they 
still have diabetes is, well--if it weren't tragic, it'd be 
almost humorous, in a sense--the suggestion, somehow, that 
you're going to have a miraculous cure. Now, that can happen, 
but the likelihood that it's going to occur is pretty limited, 
in a sense.
    So, why are we adding to that burden under those 
circumstances? I wonder if you'd address those issues for me.
    Ms. Lipnic. Sure, I'd be happy to, Senator.
    Let me say, as I said in my oral testimony, the medical 
certification process, and how it works currently, is something 
that the Department has heard about extensively, and we had the 
stakeholder meeting in September where we had the healthcare 
providers participate. Many had expressed a lot of frustration 
with how the process works, currently.
    I think it's important to understand, under the current 
regulations, and as provided for by the statute, employers--if 
they request--are entitled to a complete and sufficient medical 
certification form. The statute lays out, in great detail, what 
goes into that medical certification form--the timing and 
duration of the illness, the sufficient medical facts to 
justify whether or not the employee has a serious health 
condition.
    I think part of the frustration, in fact, on the part of 
healthcare providers that has been expressed to us, is that 
they think that the certification is too onerous.
    What we have heard a great deal about--and looking at these 
regulations--is that there is a tremendous amount of back and 
forth that is going on right now between employers and 
employees and healthcare providers about trying to resolve 
these issues that come up on the current medical certification 
form.
    Part of what our goal is--in trying to smooth out all areas 
within these regulations, but particularly as to this medical 
certification process--is to allow a better flow of information 
and to eliminate both the ``gotcha'' game that seems to be 
going on in some instances by employers, where they may get a 
current medical certification form and reject it, out of hand, 
because it's not initialed in the right box, or doesn't have 
the right information, or the employers are looking for more 
information. Also eliminate the situation where employers are 
going back to employees constantly, saying, ``You've got to 
give us more information. We need to know that this medical 
certification form is sufficient,'' and again that is laid out 
in the statute.
    Our approach to that was to do a number of things. First of 
all, in terms of the privacy--and that's why I mentioned how 
the rules work currently--employers currently contact an 
employee's healthcare provider. They do so, under the current 
regulations, through an employer's healthcare provider. In 
other words, the employer must have a healthcare provider, and 
they have their own healthcare provider contact the employee's 
healthcare provider.
    The one thing that we are recommending be changed, is that 
the employers no longer have to have a healthcare provider make 
the contact directly with the employee's healthcare provider.
    Now, there are two reasons for that. One is, HIPAA 
intervened--the Family Medical Leave Act is 1993, HIPAA is 
1996--so employees who must, if requested by the employer, 
provide that complete medical certification, would have to have 
a HIPAA authorization form on file with their healthcare 
provider, in order to enable their healthcare provider to 
disclose any kind of medical information to the employer--
whether it's to the employer's healthcare provider, or whether 
it's to the employer directly. So that--the privacy issues are 
governed by HIPAA at this point.
    Second, as to the point of essentially removing the 
employer's healthcare provider from the equation, we are 
recommending that--and this is a change that we're also putting 
into place, and again, we're trying to eliminate this 
``gotcha'' game, and we're trying to eliminate this sort of 
endless loop between employers and employees on these medical 
certifications.
    We're saying that employers must now provide, in writing to 
employees, what is wrong with their medical certification form. 
They just can't reject it out-of-hand, they can't just say, 
``It's not sufficient,'' they've got to tell the employees, in 
writing, what's wrong with it, and they've got to give the 
employee a chance to cure that deficiency.
    In so doing, we would hope that the employee would, then, 
get out of this kind of endless loop, have the chance to go 
back to his or her healthcare provider, get the information and 
resolve these issues in a much quicker fashion.
    Or, if the employee chooses, and would tell his or her 
employer, ``Go ahead and contact my doctor,'' that HIPAA 
authorization would already have to have been filled out by the 
employee's doctor. But, only the contact between the employer 
directly, with the employee's healthcare provider, can only 
take place after the employer has told the employee, in 
writing, ``Here's what's wrong with this medical certification 
form,'' and give the employee a chance to cure that deficiency.
    Again, we're trying to eliminate this back and forth and a 
lot of this ``gotcha'' that seems to be going on.
    Senator Dodd. I believe I follow that, I think I do, 
anyway. Again, sitting there, I'm an employee, it's going to 
make me a little dizzy just thinking about the steps and 
hurdles to get through all of this.
    I appreciate your point about making sure the employer lets 
the employee know that there's something--this is specifically 
what's missing in the certification.
    Ms. Lipnic. Right.
    Senator Dodd. I'm surprised it's taken us that long. it 
seems to me that's fairly common sense, then just rejecting it. 
I mean, why has it taken us this long to get that kind of a 
suggestion?
    I'm still uneasy about the idea that--because that could go 
on for quite a while, in a sense. The quickest way to, maybe, 
get around it one would think, is then of course, just to sign 
those HIPAA authorizations so the employer, either through 
their healthcare provider, whatever, could contact and be in 
touch with the employee's healthcare provider, and that opens 
up a door. While it may make it easier, there's pressures 
there. Again, it strikes me that that's a pretty dangerous step 
to take, given the concerns people have about--the only reason 
in that circumstance is to determine whether the leave is 
necessary. But you're learning a lot more than whether or not 
the leave is necessary, you're going to have access to a lot of 
information, potentially, that would seem to exceed that which 
the employer needs to know to make a determination as to 
whether or not that individual ought to have a few days off to 
be with--either because of their own illness or a child's 
illness, or a parent, or someone else. That seems to me to take 
that balance, and kind of shift that pretty heavily in the 
direction that it's going to discourage employees from doing 
what I think we want them to do.
    It's not just a question that they should have a right to 
do this. It's in our interest that they do it. C. Everett 
Coop's testimony, others--this helps everybody. While it can be 
a burden on the employer for a time, in some cases, there's a 
larger value to this than just the employee, the notion that 
he's trying to get away with something.
    Too often, I think that's what this attitude was that they 
brought to the debate. I still find that permeating some of 
this conversation--that this is somehow a scam, and that people 
are trying to take advantage of their employer by doing this. 
That's what I'm worried about when I hear about this, getting 
HIPAA authorizations. That can have a chilling effect on 
someone's desire to get that kind of approval to go forward. 
That's my concern with that.
    Ms. Lipnic. Senator, I appreciate that concern, and your 
point about trying to find the right balance.
    Senator Dodd. Yes.
    Ms. Lipnic. It is exactly what we've been trying to do in 
many aspects in these regulations. HIPAA, as I said, which is a 
later enactment from the FMLA, would certainly govern those 
privacy issues.
    The other thing I do want to point out is--even under the 
current law, and we are actually making this clear in our 
proposed regulations--employers are not allowed to get access 
to the entire medical record of the employee. The employer has 
the right to get the complete and sufficient medical 
certification form as spelled out in the statute, but employees 
cannot be compelled to sign a release to give over their entire 
medical records to their employer.
    Senator Dodd. I appreciate that.
    I want to turn to Senator Hatch and Senator Murray very 
quickly--correct me if I'm wrong--did you address for me, 
adequately, the issue about these permanent conditions?
    Ms. Lipnic. I did not, and I did want to mention that, 
quickly.
    One of the proposals that we have in our rulemaking is to 
essentially codify what has been the Department's enforcement 
practice for a number of years now, where the medical 
certification can be asked for of employees on an annual basis. 
We have had that as an enforcement policy for awhile.
    Now, as Senator Kennedy mentioned, the example of his son, 
who has a chronic condition. This is a tension that we saw in 
the comments between employers and employees and, again, the 
healthcare providers when employees have some kind of chronic 
condition--let's use asthma as the example--and the healthcare 
provider says that it's a lifetime condition, the employee's 
being treated for it--the employer has no ability to know what 
kind of attendance that they can expect or predict from that 
employee.
    So, as a matter of enforcement policy we did, a number of 
years ago, institute a policy where employers can get an annual 
certification. Part of this is trying to get at this, where 
healthcare providers will certify the condition as lifetime, 
with not much more information for the employer to be able to 
try to figure out how they can potentially staff around this 
person's condition.
    It's not perfect. I think the difficulty in all of these 
situations, when you're dealing with medical conditions is, one 
person's condition, you know, will impact that person one way, 
and someone else impacted differently. I think what we're 
trying to do is get the information better and more complete up 
front to--between employers and employees and the healthcare 
providers that we think would actually alleviate many of these 
requests to get repeated certifications.
    Senator Dodd. I thank you for that. Senator Hatch. I just 
wanted to follow the traditional----
    Senator Hatch. If it's OK with Senator Murray and you, Mr. 
Chairman--I always do what you tell me to do.
    Senator Dodd. That's right, make me look bad, go ahead.
    [Laughter.]
    Senator Hatch. That's not unusual from time to time.
    Senator Dodd. You do it very easily, all the time.
    Senator Hatch. That's right.
    On your report on the RFI last June, you identified the 
definition of ``serious health condition'' as one of the 
biggest problems with the current regulation. Now, you've 
touched on this a little bit, but why aren't you proposing to 
fix this problem in your proposed rulemaking?
    Ms. Lipnic. Senator, we looked, and when we first issued 
the request for information we asked for all--many suggestions 
about how could we better define and give some greater 
certainty to what constitutes a ``serious health condition.'' 
It's a two-part definition under the statute, that got turned 
into a six-part definition in the regulations.
    That six-part definition has been the subject of a lot of 
criticism, certainly. I think, from the employer community, 
that it took a very expansive view of what constitutes a 
serious health condition.
    We are proposing a couple of changes in the definition. One 
is, where there is a requirement that employees have to be 
incapacitated, essentially, sick for more than 3 days, and have 
two visits to a healthcare provider, we are cabining off those 
two visits and saying that they must take place within 30 days 
of the period when the individual has been sick.
    We're doing that because we want to give some greater 
certainty to that part of the definition. Under the current 
open-ended definition, the 10th Circuit has interpreted that in 
a very restrictive way and said that those two visits must take 
place within the 3 days that the individual is sick. We think 
that that is a far too restrictive reading.
    Then as to the separate definition within ``serious health 
condition'' which has to do with chronic conditions, and the 
issue of chronic conditions is probably the one that we have 
probably heard the most about, and that I think in terms of 
trying to reconcile all of the aspects of the Family Medical 
Leave Act is the most difficult to deal with, both for 
employers and employees.
    The current definition for chronic health conditions says 
that the individual has to have periodic visits to the 
healthcare provider. We are defining those periodic visits as 
twice within a year.
    I can well imagine that we will get many comments from 
employers that would have suggested that we should have taken a 
far more restrictive view of serious health condition, but I 
will tell you, we asked for someone to give us a good way to 
define, better define serious health condition, we did not see 
anything in that, in our record, and I think most importantly, 
we didn't think it was appropriate for us to take a more 
restrictive view. Because, the fact is, of the 7 million people 
who took Family Medical Leave in 2005, we don't know how many 
people took it for colds, and how many took it for cancer. 
Nobody knows that. We did not think it was appropriate for us 
to make any kind of significant changes to that definition that 
would then restrict the eligibility. It's not a perfect 
definition, by any means, but it's what we have to work with.
    Senator Hatch. Well, I don't envy you your job.
    I'd like to commend the Department for moving so quickly on 
the new Military Family Leave provisions that were signed into 
law last month. Can you identify for me, what are the major 
issues, if any, with that particular law?
    Ms. Lipnic. Well, there are a couple, and obviously, it's 
certainly our goal to get those implemented as quickly as 
possible. We laid out in our proposed rulemaking many of the 
issues that we had identified.
    Among those is, we believe that it would be best for us to 
rely on a certification from the Defense Department or the 
Veterans Administration to verify--so that the employer has 
some means to verify that the individual is entitled to the 
leave.
    There are two provisions, as you know, in that new 
entitlement. One is for the 6 months of leave for someone who's 
injured, the other is for any qualifying exigency and there is 
very limited legislative history about what that term ``any 
qualifying exigency'' should be to give the protection of 12 
weeks of family medical leave to military families.
    Now, we have had good discussions already with the National 
Military Families Association. They have given us a list of 
what they've suggested ought to qualify as that ``any 
qualifying exigency'' but that's obviously a very broad term, 
and we want to make sure that we can define that in the way 
that serves these families in the best way possible, and also 
doesn't leave them in a position--as they said to us--they 
don't want to be in a position where employers don't want to 
hire them, because they think they have too much leave 
available to them.
    So, again, trying to find the right balance on that. There 
are any number of other issues that go into very technical 
details about how the current regulations work, and those we 
are seeking comment on, as well.
    Senator Hatch. Thank you, Mr. Chairman, my time is up.
    Senator Dodd. Thank you very much, Senator Hatch.
    Senator Murray.
    Senator Murray. Thank you very much. I understand that the 
Department received around 15,000 comments last year in 
response to its request for information on Family Medical Leave 
Act, correct?
    Ms. Lipnic. That's correct.
    Senator Murray. I also understand that your Agency's last 
really major attempt to collect data through a largely 
distributed survey, much more scientific, was 2000--8 years 
ago, is that correct?
    Ms. Lipnic. Nineteen ninety-nine to two thousand, yes.
    Senator Murray. So, about 8 years ago.
    That really leads me to believe that the Department's 
viewpoint on employer concerns with the law was kind of shaded 
by anecdotal information rather than scientific, or large 
survey. So, it sort of begs the question, why now? Why did the 
Department choose to issue new regulations 8 years after a 
major survey, and sort of, incidentally, in the President's 
last year of office?
    Ms. Lipnic. Senator, when we issued the request for 
information, we did ask for data that anyone wanted to supply 
to the Department and we have----
    Senator Murray. Are you talking about last year or 8 years 
ago?
    Ms. Lipnic. Correct, last year, when we----
    Senator Murray. Which was just, sort of, a sampling 
survey--15,000 isn't a lot of----
    Ms. Lipnic. That's correct. We made no representations in 
the report that that was a scientific survey. We asked for 
data, we looked at that and we supplemented the data that we 
have through those surveys that were done in 2000 of employers, 
establishments and employees.
    Senator Murray. Was your draft proposal based mostly on the 
information that you got a year ago, then? The request for 
information that you put out last summer? The proposals that 
you have out there?
    Ms. Lipnic. The Notice of Proposed Rulemaking is based 
largely on case law, and particularly where we are resolving 
splits in Circuits around the country--and also on the 
information that we got to the request for information; and 
also, though, on that information from those 2000 surveys of--
--
    Senator Murray. It seems kind of odd. Eight years later 
that you're requesting this information, or actually putting 
out proposals 8 years after you've asked, I mean, laws have 
changed dramatically, so, it seems sort of odd to me.
    Ms. Lipnic. Well, the only thing I would suggest, Senator, 
is again, a lot of the recommendations that we're making are 
based on cases that have developed over the last 15 years. Not 
every choice by any regulatory agency is data-driven, a lot of 
it is resolving conflicting cases between Circuit courts and--
--
    Senator Murray. Well, in looking at what your 
recommendations are, they just sort of strike me as what the 
employer community has been saying for some time, so I was 
wondering if this was scientific data. I looked back, you 
hadn't done anything, really, scientifically since 2000. So, it 
just seems really odd to me, 8 years later, sort of, as I said, 
incidentally, in the last year of the President's time in 
office, that all of a sudden we're getting some recommendations 
that are really, to what I read, what the employers have been 
asking, so let me ask you--was there any consideration given to 
any proposals that would expand coverage rather than pursuing 
new hurdles for workers as they try to get family and medical 
leave?
    Ms. Lipnic. Any expansions to the law would have to be done 
statutorily. Now----
    Senator Murray. Even regulation-wise, you didn't look at 
anything that might change it on behalf of the workers?
    Ms. Lipnic. No, as a matter of fact, we did make a number 
of changes within our regulatory authority that we think 
benefit workers.
    For example, under current law, when employees come back to 
work and they are in a light-duty assignment, that light-duty 
assignment, the time that they are at work, counts against 
their 12 weeks of Family Medical Leave entitlement. Our view--
and a number of courts have interpreted it that way, and that's 
the current regulatory policy.
    Our view was, when you are at work, you're not on leave, 
and therefore, you should not be burning your FMLA 12-week 
entitlement. So, we made that change.
    We have a number of places where we've put in clarifying 
language to make it clear, for example, we had a lot of 
requests on this issue of a family member, does this particular 
family member have to be the only person in his or her family 
who is needed to care for their father or mother? We had, in 
fact, many, many requests from employers saying, ``Can't you 
specify, we need some verification that that employee is the 
one individual in his or her family who has to care for that 
family member?'' We said, ``No,'' and in fact we made it clear 
that employers can not ask for that, and that if the employee 
has someone in his family that he has to take care of, he's 
entitled to the protections of the Family Medical Leave Act.
    Senator Murray. So, that was one new regulation you did put 
in place. But it just seems to me, many of the ones we've been 
talking about do put in place new hurdles, or really, sort of 
intimidation for employees, as the Chairman has talked about, 
that I find sort of disconcerting.
    But, I do want to hear from the other panels, I know we 
have very little time, so I'll stop there.
    Senator Dodd. Well, thank you very much, Ms. Lipnic. 
There's probably some additional questions for members of the 
committee. We will leave the record open and ask you to 
respond.
    Senator Hatch, I don't know if you have any additional 
questions for this witness?
    As has been suggested here, these are proposed regulations. 
I would anticipate if I were you, probably a response from many 
of us up here regarding these proposed regulations, and hope 
that you would take those into consideration as you're looking 
at these ideas, before they become permanent regulations.
    I, once again, reiterate the point Senator Hatch has made 
about the leave policy for veterans coming back, and make the 
suggestion to you about the idea of an interim way that might 
allow us to move forward more rapidly, here, in the 
anticipation of permanent regulations. As I said, having done 
this before, there is precedent for it, and there might be a--
not that it's easy to do, I understand that, but in order to 
get to this, it may be of some help if you can get some interim 
regulations and allow us to begin to serve these people.
    With that, we thank you very much.
    Ms. Lipnic. Thank you, Senator.
    Senator Dodd. Thanks for being here today.
    Let me ask our second panel to join us, Debra Ness, I 
mentioned earlier, the president of the National Partnership 
for Women and Families, Marcel Reid from ACORN, Kristen Grimm, 
president of Spitfire Strategies, and Kathie Elliott, director 
of Employee Relations, Central Michigan University. We thank 
all four of you for being here, we'll let you get seated.
    Debra, Mr. Reid, Ms. Grimm, nice to see you. Ms. Elliott, 
thank you for being here, as well.
    I'm going to ask you, if I can, to keep your remarks to 5 
minutes, if you would. I know that's not easy, considering 
you've got a lot of things you want to say, but I'll now ask 
the consent that all of your full statements, any supporting 
data, material that you think would be helpful for the 
community to have at this moment would be included in the 
record. I'm not going to rigidly hold you to 5 minutes, but 
just sort of keep in mind. I think there's some light somewhere 
around here that blink--I guess they're right in front of you, 
I think on those--are there lights there? So, if you can kind 
of keep an eye on that it would be helpful so we can get to the 
Q&A period.
    Debra, we'll begin with you. Thank you very much for being 
here.

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

    Ms. Ness. All right, Senators, good afternoon.
    I am Debra Ness, President of the National Partnership for 
Women and Families. The National Partnership has been working 
on issues that are important to women and families for more 
than three and a half decades. We are very proud of our history 
as the organization that led the campaign for passage of the 
Family Medical Leave Act and today we lead a coalition of more 
than 200 organizations that are working to defend and expand 
this ground-
breaking law.
    I'm especially pleased to be here today, because this month 
marks the 15th anniversary of the FMLA. This law has helped 
tens of millions of women and men meet their family 
responsibilities without sacrificing their jobs. It has 
profoundly changed both our culture and our expectations about 
the workplace. It's been good for business, as well as good for 
workers and families.
    Many of us here today are veterans of the very long fight 
to pass this law. We overcame relentless scare tactics from 
businesses that claimed the law would be the end of them. 
Fifteen years later, though, the Family Medical Leave Act is 
well-established, and businesses have flourished during this 
period.
    It's important for us to remember those scare tactics when 
we talk about expanding the law, because opponents will use 
them again. They are the same unfounded predictions, designed 
to block progress today, just as they were 15 years ago. If we 
have the courage to move past them, I am convinced we will 
prove, once again, that family-friendly workplace policies work 
well for everyone.
    This is an exceptionally sweet anniversary for us, because 
this year also marks the very first ever expansion of the 
Family Medical Leave Act. Now, military families--the families 
that have sacrificed so much for this country--can use the FMLA 
to take up to 26 weeks of leave to care for soldiers that are 
injured or made ill during combat.
    Now, we're thankful for all who helped make that law 
happen, but a very, very special thank you to you, Senator 
Dodd, for your extraordinary leadership in making that law 
happen.
    But at the same time we celebrate this victory, we are so 
worried about efforts to chip away at the progress we have 
made. As we sit here today, the National Partnership is 
preparing comments on the regulations, the 500-plus pages of 
proposed regulations that Victoria Lipnic just spoke about.
    We will do everything possible to ensure that no 
regulations make it harder for workers to take the leave that 
they need. But frankly, we do think it is absurd that 15 years 
later, the Administration is forcing us to defend gains of the 
past, instead of us helping, focusing on how to expand the law 
to help workers going forward in the future. I promise you, we 
won't be deterred from those efforts.
    We estimate that since 1993, between 60 and 100 million 
workers have used the FMLA. But, unfortunately, millions more 
who desperately needed it, didn't take it because they either 
weren't eligible, or they couldn't afford to take the unpaid 
leave the law provides, and that needs to change.
    This hearing is about the next chapter, and we are 
committed to helping you write that chapter. Right now, for too 
many workers, a serious illness or the birth of a child, sets 
in motion a series of events that leads to loss of job, loss of 
health insurance, and economic catastrophe. That's because 
about 40 percent of private sector workers are not covered by 
the FMLA, and many of those who are, can't afford to go without 
the paycheck.
    We need to expand FMLA so it covers all workers. We need to 
provide some income support so that workers can afford to take 
the leave that they need, and 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 the necessary 
services to deal with domestic violence.
    We especially need to see paid leave adopted nationwide. 
Last year, Senator Dodd, you and Senator Stevens introduced the 
first-ever bipartisan bill to provide wage replacement for 
workers on family or medical leave. This bill would create a 
Family Leave Insurance Fund, paid for by small contributions 
from both employers and workers. I can tell you, there is very 
strong and deep support for this kind of law.
    The kind of program that you're proposing would be good for 
business, as well as for workers. We know the cost of losing an 
employee is generally much greater than the cost of providing 
short-term leave to retain employees. As you pointed out 
yourself, right now, the United States stands alone among 
industrialized nations in its lack of a national program to 
help workers afford leave.
    A Harvard/McGill study showed that out of 173 nations, only 
4 did not guarantee paid parental leave, and those four are 
Liberia, Papua New Guinea, Swaziland and yes, the United 
States. So, we can do better.
    With the economy in trouble, with families struggling, with 
more workers caring for older families than ever before, we 
need to do more than talk about family values, we need to put 
those family values to work. So, let's expand the FMLA so that 
more workers can take the leave they need without jeopardizing 
their economic security, or their family's well-being.
    Thank you very much.
    [The prepared statement of Ms. Ness follows:]
                    Prepared Statement of Debra Ness
    Good afternoon. I am President of the National Partnership for 
Women & Families. The National Partnership is a non-profit, non-
partisan advocacy group dedicated to promoting fairness in the 
workplace, access to quality health care, and policies that help 
workers in the United States meet the duel responsibilities of work and 
family.
    The National Partnership for Women & Families leads a broad, 
diverse coalition of more than 200 groups dedicated to defending and 
expanding the Family and Medical Leave Act (FMLA) on behalf of workers 
in the United States. The coalition reaches across a wide spectrum of 
concerned citizens, including religious, women's, seniors, veterans, 
and disability groups.
    Our leadership of this coalition is a natural extension of our 
original role as drafter of the FMLA and leader of the coalition of 
more than 200 organizations advocating for its passage.
    I am especially pleased to be here today because this month marks 
the 15th anniversary of the FMLA. Its passage was a watershed moment 
for government support of working families in the United States. The 
law guarantees eligible workers up to 12 weeks of leave each year to 
care for immediate family members or to address serious personal health 
concerns. By making job-protected leave available to all eligible 
workers, and requiring that health insurance continue through the 
leave, the law has enabled both women and men to meet their 
responsibilities for their families without sacrificing their jobs and 
long-term economic stability. The law also helps combat gender 
discrimination and pernicious 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 care 
giving responsibilities. It also helps ensure that men have the time to 
care for children and other families members, and take on more 
responsibilities at home.
    To celebrate this anniversary, the National Partnership for Women & 
Families launched a new Web site, www.thanksfmla.org, for workers to 
learn about the FMLA and to share their stories about how the law has 
helped in their lives. Although the Web site just went up, we are 
already receiving many stories and I will be sharing some of those with 
you today.
    Many of us in the room today were instrumental in the long fight to 
pass the FMLA. We braved an unrelenting stream of attacks from 
businesses that claimed the law would be the end of them. Fifteen years 
later, the law is well established, and businesses have flourished. It 
is important to remember that lesson when we talk about expanding the 
FMLA and creating a way to include wage replacement while workers are 
on leave--we will undoubtedly hear the same scare tactics again and 
predictions that the sky will fall. It did not fall when we passed the 
FMLA, and it will not fall if we make this basic family support 
available and accessible to more workers. In fact, as we explain in 
more detail below, the strongest economies in the world are in 
countries that provide paid family leave to all workers. The FMLA is 
good for families, and it is good for business. Expanding it will make 
it even more so.
    It is an exceptionally sweet anniversary for supporters of the FMLA 
because this year also marks the first time the law has been expanded 
since its inception. Now under the FMLA, military families will be able 
to take up to 26 weeks of leave to help care for their soldiers injured 
in combat. These families have sacrificed so much for their country, 
and we are thrilled that expansion of the FMLA will help them access a 
necessary support, leave to care for a wounded soldier. Additionally, 
military family members will be able to use FMLA leave to help them 
cope with the deployment of a close relative.
    While the anniversary and expansion of the FMLA are cause for 
celebration, we are also very concerned for the vitality of the law 
given that the Department of Labor is proposing new FMLA regulations. 
As my testimony will make clear, the FMLA is working and working well. 
It does not need any significant regulatory changes. Rather, we should 
be looking at how we can expand it so more workers can realize its 
promise of job-protected leave in times of need.
                        the fmla is working well
    Since 1993, workers have used the FMLA more than 100 million times 
to take the unpaid time off that they need to care for themselves or 
their families.\1\ This includes employees from all walks of life. For 
example, 75 percent of leave takers earn less than $75,000 a year.\2\ A 
significant number of leave takers are men (42 percent) \3\ who use the 
FMLA for both their own serious illness (58 percent) and to care for 
seriously ill family members (42 percent).\4\ When taken, leave is 
usually quite short: the median length is just 10 days.\5\
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    \1\ The Family and Medical Leave Act Regulations: A Report on the 
Department of Labor's Request for Information 2007 Update (U.S. 
Department of Labor June 2007) (herinafter ``DOL 2007 Report'' ) at 
129. We based this estimate on multiplying the Employer Survey Based 
Estimate by 15.
     Unfortunately, the data we have on FMLA leave use is quickly 
becoming out of date. The Department of Labor last surveyed employers 
and employees on the FMLA in 2000. Since then, the Department has not 
conducted any national survey on the FMLA. In its most recent Request 
for Information and Report, the Department appeared to question the 
data from its 2000 Report, although it did not offer substitute data, 
nor has it attempted any national survey of its own. The Department 
needs to conduct scientifically sound survey research on the FMLA so 
that policy decisions can be made based on that information, rather 
than on selected employers' complaints.
    \2\ David Cantor et al., Balancing the Needs of Families and 
Employers: Family and Medical Leave Surveys 2000 Update, conducted by 
Westat for the U.S. Department of Labor, Washington, DC, 2000 
(hereinafter ``DOL 2000 Report'') at 3-7.
    \3\ Id.
    \4\ Id. uT1at 4-17.
    \5\ Id. at 2-4.
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    Workers overwhelmingly support the FMLA. In 2006, DOL issued a 
Request for Information about the FMLA and received thousands of 
comments from individual workers concerning how incredibly important 
the FMLA is in their lives. Indeed, DOL observed that it could have 
``written an entire report'' based solely on the individual stories 
supplied by workers.\6\ Some of the stories included by DOL in its 
report illustrate why the FMLA is so important:
---------------------------------------------------------------------------
    \6\ DOL 2007 Report at iv.

          As a cancer survivor myself, I cannot imagine how much more 
        difficult those days of treatments and frequent doctor 
        appointments would've been without FMLA. I did my best to be at 
        work as much as possible, but chemotherapy and radiation not 
        only sap the body of energy, but also take hours every day and 
        every week in treatment rooms.\7\
---------------------------------------------------------------------------
    \7\ Id. at 1.
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          FMLA has tremendously helped my family. I have a child born 
        w/[asthma], allergies & other medical issues. There are times 
        I'm out of work for days. [I]f I didn't have FMLA I would have 
        been fired [a long] time ago. I've been able to maintain my 
        employment and keep my household from having to need assistance 
        from the commonwealth.\8\
---------------------------------------------------------------------------
    \8\ Id. at 2.
---------------------------------------------------------------------------
          Thanks to the FMLA, I was able to take 3 months off work with 
        full salary in order to take care of [my husband] when he was 
        reduced to a state of complete dependency. . . . I was secure 
        in the knowledge that I could come right back to my job, and I 
        developed a keen sense of loyalty to my employer which has more 
        than once prevented me from looking for work elsewhere.\9\
---------------------------------------------------------------------------
    \9\ Id. at 5.

    The FMLA has also been accepted and welcomed by employers. Data 
from the most recent national research on it, conducted by the U.S. 
Department of Labor, show that the vast majority of employers in this 
country report that complying with the FMLA has a positive/neutral 
effect on productivity (83 percent), profitability (90 percent), growth 
(90 percent), and employee morale (90 percent).\10\ The act benefits 
employers in numerous ways, most notably the savings derived from 
retaining trained employees, from productive workers on the job, and 
from a positive work environment.
---------------------------------------------------------------------------
    \10\ DOL 2000 Report at 7-5 and A-2-68 Table A2-7.5.
---------------------------------------------------------------------------
    The Department of Labor agrees that the FMLA is working well. 
According to its 2007 Report:

          Department is pleased to observe that, in the vast majority 
        of cases, the FMLA is working as intended. For example, the 
        FMLA has succeeded in allowing working parents to take leave 
        for the birth or adoption of a child, and in allowing employees 
        to care for family members with serious health conditions. The 
        FMLA also appears to work well when employees require block or 
        foreseeable intermittent leave because of their own truly 
        serious health condition. Absent the protections of the FMLA, 
        many of these workers might not otherwise be permitted to be 
        absent from their jobs when they need to be.\11\
---------------------------------------------------------------------------
    \11\ DOL 2007 Report at v.

    The Department devoted a great deal of its 2007 report to the use 
of intermittent unscheduled leave and the problems employers claim to 
have with this part of the FMLA, and we fully expect that this will be 
an issue in the Department's proposed regulatory changes. But because 
it has not surveyed employers or employees on this issue since 2000, 
the Department's analysis was based heavily on anecdotes and self-
reporting from employers regarding the use of unscheduled intermittent 
leave. The data, however, shows that unscheduled intermittent leave is 
a very small part of the leave taken under the FMLA and that the vast 
majority of FMLA-covered establishments do not have any problem with 
unscheduled intermittent leave. From DOL's 2000 survey of employers we 
know that ``81 to 94 percent of covered establishments that report that 
intermittent FMLA leave did not adversely impact either their 
productivity or profits, or may have had some positive effect.'' \12\
---------------------------------------------------------------------------
    \12\ Id. at 159.
---------------------------------------------------------------------------
    Intermittent leave is critically important to certain employees 
because of the health conditions they or their family members face. 
Just last week, the National Partnership received the following story 
regarding FMLA use from a woman in Illinois:

          I have benefited from FMLA, because my father is suffering 
        with prostate cancer and my mom has type 2 diabetes and severe 
        arthritis. I took intermittent FMLA to help my parents through 
        this rough stage in their lives. My dad is 83 years old, and 
        does not wish to go to a nursing home, he has good days and bad 
        days. I am the only child of my parents, and they depend on me 
        for everything. I don't know what I would do without FMLA 
        benefit. I hope they will not take it away.\13\
---------------------------------------------------------------------------
    \13\ E-mail Received by the National Partnership for Women & 
Families, www.thanksfmla.org, on February 6, 2008.
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                     paid family and medical leave
    Politicians and lawmakers often speak passionately about building a 
nation that values families, and the FMLA was a monumental step toward 
this goal. But it was only a first step. Millions of Americans cannot 
afford to take advantage of the protections it affords. We strongly 
support expanding the FMLA to make it more accessible and to all 
working families and to make paid family and medical leave an option 
for working families that simply cannot afford to take the unpaid leave 
the FMLA provides.
    Without some form of wage replacement, the FMLA's promise of job-
protected leave is a chimera for too many women and men. In fact, 78 
percent of employees who have needed but not taken family or medical 
leave say they could not afford to take the leave.\14\ More than one-
third (34 percent) of the men and women who take FMLA receive no pay 
during leave, and another large share of the population have a very 
limited amount of paid leave available to them.\15\
---------------------------------------------------------------------------
    \14\ DOL 2000 Report at 2-16.
    \15\ Id. at 4-5--4-6.
---------------------------------------------------------------------------
    Last week we received a story from a woman in Colorado that 
illustrates how devastating the lack of wages while on leave can be:

          I needed to take FMLA when I was pregnant. My job didn't 
        offer paid leave when I gave birth to my daughter. Because of 
        FMLA I was guaranteed time off when I was put on bed rest. 
        Because it was unpaid I had to work from my bed and go back to 
        work before my daughter was ready for me to go back. 
        Financially I needed to go back to work. My daughter was 4 
        weeks old and on oxygen. I had to make special arrangements for 
        a family friend to watch her instead of the childcare facility 
        because of her age and special needs.\16\
---------------------------------------------------------------------------
    \16\  E-mail Received by the National Partnership for Women & 
Families, www.thanksfmla.org, on February 5, 2008.

    When a personal or family medical crisis strikes, workers 
frequently have no choice but to take unpaid leave or leave their jobs. 
As a result, for many workers, the birth of a child or an illness in 
the family forces them into a cycle of economic distress. Twenty-five 
percent of all poverty spells begin with the birth of a child, 
according to The David and Lucile Packard Foundation.\17\
---------------------------------------------------------------------------
    \17\ The David and Lucile Packard Foundation. 2001. The Future of 
Children: Caring for Infants and Toddlers. Richard Behrman, ed. Los 
Altos, California: The David and Lucile Packard Foundation. 11(1).
---------------------------------------------------------------------------
    The lack of paid family and medical leave hits low-income workers 
hardest: almost three in four low-income employees who take family and 
medical leave receive no pay, compared to between one in three and one 
in four middle-and upper-income employees.\18\ In addition, low-income 
workers, as well as their children and family members, are more likely 
to be in poor health in large part because many lack health insurance 
and are not eligible for coverage under Medicaid and SCHIP.\19\
---------------------------------------------------------------------------
    \18\ DOL 2000 Report at 4-5 and A-2-31 Table A2-4.1.
    \19\ Kaiser Family Foundation. 2007. The Uninsured: A Primer. Key 
Facts About Americans Without Health Insurance. http://www.kff.org/
uninsured/upload/7451-03.pdf.
---------------------------------------------------------------------------
    Providing paid family and medical leave for workers to perform 
essential caretaking responsibilities for newborns and newly-adopted 
children. Parents who are financially able to take leave are able to 
give new babies the critical care they need in the early weeks of life, 
laying a strong foundation for later development. Paid family and 
medical leave may even reduce health care costs: studies have shown 
that when parents are able to be involved in their children's health 
care, children recover faster.\20\
---------------------------------------------------------------------------
    \20\ Palmer S.J., Care of sick children by parents: A meaningful 
role. J Adv Nurs. 18:185, 1993.
---------------------------------------------------------------------------
    Paid family and medical leave will also help the exponentially 
growing number of workers who are caring for older family members. 
Thirty-five percent of workers, both women and men, report they have 
cared for an older relative in the past year.\21\ Roughly half of 
Americans 65 years of age and older participate in the labor force. 
Many require time away from work to care for their own health or the 
health of a family member.\22\
---------------------------------------------------------------------------
    \21\ Families and Work Institute, Highlights of the 2002 National 
Study of the Changing Workforce, 2002.
    \22\ AARP Public Policy Institute, Update on the Aged 55+ Worker, 
2005.
---------------------------------------------------------------------------
    A national paid family and medical leave program will help 
businesses. Studies show that the costs of losing an employee 
(advertising for, interviewing and training a replacement) is often far 
greater than the cost of providing short-term leave to retain existing 
employees. The average cost of turnover is 25 percent of an employee's 
total compensation.\23\ When businesses take care of their workers, 
they are better able to retain them, and when workers have the security 
of paid family leave, they experience increased commitment, 
productivity, and morale, and their employers reap the benefits of 
lower turnover and training costs. Finally, paid family and medical 
leave helps small business owners because it allows them to offer a 
benefit that they could not afford to provide on their own. This will 
help level the playing field with larger businesses, making it easier 
for small businesses to compete for the best workers.
---------------------------------------------------------------------------
    \23\ Employment Policy Foundation. 2002. ``Employee Turnover--A 
Critical Human Resource Benchmark.'' HR Benchmarks (December 3): 1-5 
(www.epf.org, accessed January 3, 2005).
---------------------------------------------------------------------------
    As described below, only a handful of States offer paid family and 
medical leave programs for workers in their States. At the Federal 
level, Senators Christopher Dodd and Ted Stevens have introduced the 
first-ever bipartisan bill that would provide wage replacement for 
workers on family and medical leave. The Family Leave Insurance Act 
would provide up to 8 weeks of partially paid leave to people who need 
to take time off work for those reasons allowed under the FMLA. The 
bill would create a ``Family Leave Insurance Fund,'' paid for by small 
contributions from both employers and workers, to allow for pooled risk 
and lower costs. The payments would be issued through employers' 
regular payroll system, to make it simple to administer, with prompt 
reimbursement from the Family Leave Insurance Fund.
    The public strongly supports paid family and medical leave. This 
fall, the National Partnership released national polling data that 
shows consistent support for paid family and medical leave. Respondents 
were asked whether they would support a plan in which workers and 
employers pay a dollar each a week for paid family and medical leave. 
Seventy-six percent of the total sample were supportive. Hispanics and 
African-Americans were even more strongly supportive--86 percent and 84 
percent respectively. Neither gender nor age affected support for the 
proposal: 73 percent of men and 78 percent of women supported it as 
did, as noted above, a large majority of respondents of all ages.\24\
---------------------------------------------------------------------------
    \24\ Lake Research Partners, Nationwide Polling on Paid Family and 
Medical Leave Poll, conducted June 20-27, 2007.
---------------------------------------------------------------------------
                         states leading the way
    Realizing the importance of paid family and medical leave, State 
programs are starting to provide it. Already, the six States with 
temporary disability programs (California, Hawaii, New Jersey, New 
York, Rhode Island and Puerto Rico) provide wage replacement for women 
during the period of disability due to pregnancy.
                               california
    In 2004, California became the first State to provide wage 
replacement while a worker is on family leave.\25\ The most 
comprehensive of its kind, the law has given more than 13 million 
California workers (nearly one-tenth our country's workforce) partial 
income replacement (roughly 55 percent of wages) while they care for a 
new child or seriously ill family member. Premiums for the program are 
paid entirely by workers and are incorporated into the State's 
temporary disability fund. Critically, the wage replacement program 
covers all California workers who pay into the system; it is not 
limited to those who are covered by the Federal or State family medical 
leave act. Thus, the program reaches workers who may need it the most--
those who are not covered because they work for small businesses or do 
not have a long tenure at their current job. Studies of workers using 
the wage replacement offered by the law show that 88 percent do so to 
care for a new baby and 12 percent do so to take care of another family 
member.\26\
---------------------------------------------------------------------------
    \25\ California's temporary disability system already provided 
payment when a worker was unable to work because of the worker's own 
disability, including disability due to pregnancy.
    \26\ California Employment Development Department, Press Release, 
July 1, 2005 (available at http://www.edd.ca.gov/nwsre105-36.pdf).
---------------------------------------------------------------------------
                            washington state
    In May of 2007, Washington State became the second State in the 
country to enact a paid parental leave program. Washington's program 
will provide $250.00 per week for 5 weeks to new parents who are 
staying home with their child. Although not as expansive as 
California's, Washington's program also covers more workers than the 
FMLA and provides job-protected leave for employees who work in 
establishments with over 25 employees. Washington created a committee 
to explore funding options for the bill. In the short-term, the 
committee has recommended using the general fund of the State.
     wage replacement or income insurance campaigns in other states
    We are seeing more States engaging in efforts to provide the 
necessary income for workers to be able to take the leave they need. In 
the past year, New Jersey, New York, Illinois, and Oregon have all 
introduced family insurance legislation similar to California's program 
that would provide wages while workers are on family leave.
                     where we stand internationally
    The United States stands alone among industrialized nations in its 
complete lack of a national program to ensure that workers are 
financially able to take leave when they have a new baby or need to 
care for an ill family member or recover from an illness. A Harvard/
McGill study of 173 nations found that 169 guarantee paid leave to 
women in connection with childbirth, and 66 ensure that fathers can 
take paid paternity leave. The United States is the only industrialized 
country without paid family leave, and guarantees no paid leave at all 
for mothers. It is in the company of just three other nations: Liberia, 
Papua New Guinea, and Swaziland. \27\
---------------------------------------------------------------------------
    \27\ Jody Heymann, et al., The Work, Family, and Equity Index: 
Where Does the United States Measure Up?, 2007. Harvard School of 
Public Health, Project on Global Working Families, Boston, MA.
---------------------------------------------------------------------------
                               conclusion
    It is time--past time--we join the rest of the world and make sure 
our families do not have to risk their financial health when they do 
what all of us agree is the right thing--take care of a family member 
who needs them. Now is the time to put family values to work by 
protecting the FMLA from burdensome regulations that could make it 
harder for workers to utilize it, and by expanding it to cover more 
workers and help those who urgently need paid leave.

    Senator Dodd. Thank you very, very much, and thank you for 
your generous comments about the Family Medical Leave program 
for the military.
    I made the mistake, when we were talking about this 
earlier, I talked about it being a paid leave. That was the 
original idea, but the Administration objected to a paid leave 
program for the caregivers of veterans, and I regret that. That 
was the original idea, that was the idea that Bob Dole actually 
recommended, coming out of that Wounded Warriors Commission 
that he and Donna Schulayla chaired, and we weren't able to get 
the paid part of that included, which is going to add to the 
burdens of getting this done. Again, a lot of these people 
don't come from families that can afford to take the kind of 
time, the 24 weeks that we're talking about here, to provide 
that kind of assistance. That's almost impossible in many 
cases. So, we're going to work on that, as well.
    Ms. Reid, thank you for being here.

 STATEMENT OF MARCEL REID, PRESIDENT, DC ACORN, WASHINGTON, DC

    Ms. Reid. Thank you. My name is Marcel Reid, and good 
afternoon, Senator and friends. I represent DC ACORN, I'm 
actually the President of DC ACORN, and I wanted to speak about 
my own experience with the Family Medical Leave Act.
    But, first of all, to tell you a little about ACORN, we are 
the largest grassroots organization in the country. We have 
375,000 member families, in 105 cities. We have worked for a 
very long time on something I call the poverty tax, and that is 
lessening the burden on the poor, because everything that they 
do is more expensive.
    The Family Medical Leave Act, which I took advantage of, 
because of illness in my family, is excellent. I thank you so 
much for it. It allowed me to spend time with my mother at the 
end of her life, when she was waging her final battle against 
an extremely aggressive form of cancer.
    I was able to take advantage of this, because I had a very 
good job, and I made a decent salary, and I had savings and 
money put aside so that I could take the time off. But even 
taking the time off, I actually had to confront my employer to 
have the time off.
    When I was told about the Family Medical Leave Act by the 
suggestion of my mother's doctor, I went to my employer, and 
they immediately started putting hurdles up so that I could not 
take it. They wanted to have a complete report from her doctor, 
they wanted this, they wanted that. In the interim, I was 
supposed to stay there, while I tried to gather this 
information for them.
    I decided to take a risk, go ahead and turn in the 
information as I understood it was supposed to be turned in, 
and take that time with my mother. So, I completely sympathize 
with people who don't have the option of doing that. Who, if 
they lose that job, don't have another job down the line for 
them. My experience was that, I was financially able to do so. 
The law backed me up.
    But I have to say that employers in my experience has 
been--employers will put up unnecessary hurdles, if they can, 
to prevent you from taking the time off.
    I do a lot of grassroots organizing, and a lot of the 
people that I organize have all of the same concerns that 
anyone else does. But they don't have the option to take 
advantage of the Family Medical Leave Act, because they're 
either frightened for their jobs, or they don't think they'll 
have an opportunity to survive economically. You know, if they 
don't lose their job, they just don't have the money.
    I think that it would be very good if this law were passed 
so that they would have some income, some small amount of money 
that would allow them to spend time with their family members, 
or themselves, if they're ill.
    Thank you.
    [The prepared statement of Ms. Reid follows:]
                   Prepared Statement of Marcel Reid
    Good afternoon Senators and friends, my name is Marcel Reid and I 
am a member of the DC chapter of ACORN--the Association of Community 
Organizations for Reform Now. I am here today to share with you my 
personal story about my own use of the FMLA and to urge you to protect 
and expand this vital law.
    ACORN is the country's oldest and largest grassroots community 
organization of low- and moderate-income families. We have over 350,000 
members in 105 cities--fighting to improve our lives and get our 
members involved in their communities and in the civic process. I like 
to say ACORN's work helps reduce what I call the ``Poverty Tax''--the 
extra tax that poor people pay every day because they have fewer 
resources and more hardships.
    For years, ACORN has taken the lead in fighting for a living wage 
and other protections for workers and their families. We see the FMLA 
as an important protection. At the same time we recognize that because 
it is unpaid--many low- and moderate-income families will never enjoy 
its intended benefits.
    Today I want to share my own personal experience with FMLA to 
illustrate why our organization is committed to protecting and 
expanding this law. I hope you will truly hear what I have to say, 
because I care a great deal about this issue.
    I took leave under the FMLA in 2003 to be by my mother's side 
during her final struggle with an extremely aggressive cancer.
    Now, I think I'll just go out on a limb here and say that none of 
us in this room would be here today if it weren't for our mothers. I 
owe my mother everything--and there was no where I could have been 
during that time other than by her side, caring for her when she needed 
me like she had done for me all my life.
    Taking time off to be with my mother was one of the best decisions 
I have ever made. During those final weeks together, we grew even 
closer and I would not give up that time for anything.
    But my mother also taught me to be an honest woman. I'd be lying if 
I told you that taking that leave was not a sacrifice.
    At the time I took my leave, I had a fairly good job with a fairly 
decent salary, yet it took me nearly a full year to right myself 
financially. I was forced to use up my savings and--because loss income 
compounds itself--I wound up over charging on my credit cards as well.
    Despite the financial setbacks I suffered, I know I was one of the 
luckier ones. I know many other ACORN members--and families like ours--
who cannot even DREAM of taking advantage of FMLA because they simply 
can't afford the unpaid time off. Just another example of the Poverty 
Tax I mentioned--robbing low- and moderate-income people of their 
ability to meet their basic needs and support their families. We can do 
better.
    My mother's last lesson for me was how to die with dignity, and for 
that I am eternally grateful. I believe that every worker deserves the 
right to say a final goodbye and every worker needs to be able to take 
care of themselves and their family when real need arises--without 
worrying about financial ruin.
    I understand that the Department of Labor has come out with 
regulations that would make the FMLA less accessible to workers. Well, 
I'm here to say that's heading in the WRONG DIRECTION. We should be 
sitting here today coming up with ways to insure that every American 
worker can take job protected PAID LEAVE when they need to. To reach 
its full potential--and for workers and their families to do the same--
this law needs to be more accessible and affordable for workers--not 
less.
    Our workers and our families are America's greatest resource. We 
are only human. We are fully human. It's time we started treating each 
other that way.
    My mother lived her life hoping to see the world better and in a 
small way I hope sharing the story of her death will help do that. 
Thank you for listening to my story. I appreciate the opportunity to 
speak to you today.

    Senator Dodd. Thank you very much. I'm a huge supporter of 
ACORN. ACORN's been doing a great job on this foreclosure 
issue, and have been really helpful across the country in 
assisting families trying to stay in their homes. They've been 
around for a long time, but right now, it's been a huge 
benefit. Not for as many people as I'd like, unfortunately, but 
it's still out there making a difference for many. So, thank 
you very much for what you do.
    Ms. Reid. Thank you.
    Senator Dodd. Appreciate it.
    Ms. Grimm.

  STATEMENT OF KRISTEN GRIMM, PRESIDENT, SPITFIRE STRATEGIES, 
                         WASHINGTON, DC

    Ms. Grimm. Thank you, Mr. Chairman. Thank you all for this 
opportunity to testify before you today on this issue so 
critical to the health and welfare of families of this country.
    My name is Kristen Grimm, I'm the President and founder of 
Spitfire Strategies, a for-profit consulting firm based here in 
Washington, DC that provides strategic communications advice to 
social change organizations, such as nonprofits and 
foundations.
    I was stuck dealing with the paid leave situation very 
early on when I started my company. I started in July, I hired 
a Managing Director in October, which was a really glorified 
title, considering there were two of us. By December she was 
pregnant.
    I didn't actually know how to work QuickBooks yet, and I 
hadn't figured out if we were taking off Columbus Day or 
Veteran's Day, but suddenly I had to worry about a maternity 
leave. It was a problem, because she was a great person, and 
she'd come from a really established organization, and I was a 
start-up. If I didn't come up with something, I was going to 
lose her, and she was what I needed to build my company.
    She and I went back and forth, and we decided that we would 
have a 12-week maternity policy, 6 weeks paid, and 6 weeks 
unpaid. As a small business owner who had to foot that bill, 
and deal with that time off of my one other person working 
there, it was really scary. I didn't have government or anybody 
helping me out with that.
    I took the chance, and it worked out really well, I will 
say. Five and a half years later, Gwen is still with me, we 
have 30 employees in three cities. So, I'm really glad that I 
did it, it was a big risk, but I worry that other small 
businesses may not be taking this risk, because they don't have 
any way to mitigate this risk, of dealing with paid leave--
which you have to deal with, because every employee you hire 
actually has a family. So, they will have a family obligation.
    It's a particular privilege to appear before this 
subcommittee given our longstanding work at Spitfire, 
advocating on behalf of children and families, and for the 
policies benefiting them.
    But today, I come before you not merely as an advocate of 
such policies, but also as someone who was personally impacted 
by them, in this case, as an entrepreneur of a small business, 
whose ability to remain competitive and successful is 
predicated upon attracting and retaining a team of talented 
professionals. That is but one of the reasons I am so 
supportive of your legislation, Mr. Chairman, the paid Family 
Medical Leave Act to provide employees 8 weeks of paid leave to 
welcome a child into the family.
    To be sure, there are circumstances nearly every American 
can identify with. As a President of a small company, I believe 
paid leave that enables people to work and also care for their 
families, is the kind of policy that will make our economy more 
competitive and dynamic, much as its parent legislation did 
before it.
    Mr. Chairman, when I founded Spitfire in 2002, we were the 
very definition of a small start-up business. As I said, we 
were two people. Since that time, we have grown to employ a 
team of high-performing, 30 men and women. I'd be lying if I 
said this was easy.
    As I'm sure members of the subcommittee can appreciate, 
particularly those who have owned a business themselves, 
growing a business while remaining competitive at the same time 
is a constant struggle. Every successful business must put a 
quality product on the market that fulfills a need, but to 
continue to do that, you must be able to support a talented 
pool of employees. Today's professionals are not merely looking 
to be well-compensated financially. In an era of skyrocketing 
healthcare costs and insecure retirements, they also seek 
benefits that afford them a decent quality of life.
    At a time when two-owner families are the norm in our 
society, the professionals we seek for our firm want some 
measure of flexibility in their lives, as well as the ability 
to spend time with their children, or tend to an aging parent 
and grandparents, because long-term care is so expensive.
    Since founding Spitfire, we've had six employees get 
married, and three have healthy children. One, sadly, had a 
husband diagnosed with cancer, and needed to care for him until 
his death last year. Each of my employees needs help balancing 
work and a family, I don't believe they should have to figure 
this out on their own.
    Spitfire offers what I believe is a competitive package to 
help our employees strike that balance, starting with 120 hours 
of paid holiday leave, including the week off between Christmas 
and New Years, plus 160 hours of paid time off for vacation and 
sick leave, annually.
    We offer up to 12 weeks of pregnancy and maternity leave, 6 
of which is paid, 6 of which are unpaid, and we offer paternity 
and domestic partner leave for a birth or adoption. We also 
offer 3 days of paid bereavement leave for employees who have 
lost an immediate family member, and in special circumstances, 
grant unpaid time off to take care of significant personal 
business.
    The law doesn't require we do any of this, but we do so 
voluntarily, why? Some may wonder what kind of a strain it puts 
on business. Others may want to inquire whether our employees 
are happier or more productive.
    Mr. Chairman, no business man or woman who spends money for 
nothing in return will be successful. But in my experience, 
paid leave to care for family matters is money well-spent. For 
instance, we have many women at our firm, many who hold senior-
level positions. I am confident that these are the best people 
in the field at what they do. Quite simple, I don't think we 
would have been able to attract or retain many of them, were 
they not assured the ability to take the time necessary to 
start, or appropriately care for, a family.
    Do we miss our employees when they leave? Yes. But no one 
can be productive on the job worrying about a sick mother in 
the hospital, or whether their child has appropriate after-
school care. I, myself, have taken time off from work to deal 
with a sick parent, and while I'm the boss, I can tell you, it 
sends a good message to the rest of the team that they have the 
same level of benefits as I do.
    As I said, we already do this voluntarily. Other than 
disability insurance, which helps pay for part of maternity 
leave, Spitfire pays the freight, as it were. The paid Family 
Medical Leave Act, on the other hand, would reduce that 
burden--either by ensuring that 8 weeks would be paid on a 
shared basis by the employee, the employer, and government, or 
providing our firm with a tax benefit, because our policy of 12 
weeks exceeds that of the Federal Government's.
    In either case, paid leave is a win-win for business, a 
win-win for family, and thus a win-win for the country. It 
helps our businesses stay competitive and dynamic, it supports 
our families, as the historic Family Medical Leave Act has for 
50 million Americans. Indeed, as someone who has worked for 
almost 2 decades in the field, I believe this legislation will 
make every bit the historic impact that law has in the past 
decade and a half.
    Mr. Chairman, thank you for this opportunity to testify 
this afternoon. I look forward to the passage of this 
legislation, and hope we can see a day in which every business 
in America has this policy. Surely, it is an idea whose time 
has come.
    Thank you.
    [The prepared statement of Ms. Grimm follows:]
                  Prepared Statement of Kristen Grimm
    Thank you Mr. Chairman and Mr. Ranking Member, members of the 
subcommittee--thank you all for this opportunity to testify before you 
today on an issue so critical to the health and welfare of the families 
of this country.
    My name is Kristen Grimm. I am President and founder of Spitfire 
Strategies, a consulting firm based here in Washington, DC that 
provides strategic communications advice to social change 
organizations, such as non-profits and foundations.
    Mr. Chairman, it is a particular privilege to appear before this 
subcommittee given our longstanding work advocating on behalf of 
children and families and for the policies that benefit them.
    But today, I come before you not merely as an advocate of such 
policies, but also as someone who is personally impacted by them--in 
this case, as an entrepreneur of a small business whose ability to 
remain competitive and successful is predicated upon attracting and 
retaining a team of talented professionals.
    That is but one of the reasons I am so supportive of your 
legislation, Mr. Chairman, the Paid Family and Medical Leave Act, to 
provide employees 8 weeks of paid leave to welcome a child into the 
family or to care for themselves or a sick family member. To be sure, 
these are circumstances nearly every American can identify with. As a 
small businesswoman I believe paid leave is the kind of policy that 
will make our economy more competitive and dynamic, much as its parent 
legislation, the Family and Medical Leave Act, did before it.
    Mr. Chairman, when I founded Spitfire in 2002, we were the very 
definition of a small start-up business--a team of 2, including myself. 
Since that time, we have grown to employ a team of high-performing 29 
men and women, with a 30th employee likely added this month. We are 
growing.
    I'd be lying if I said it was easy.
    As I am sure members of the subcommittee can appreciate, 
particularly those who have owned a business themselves, growing a 
business while remaining competitive at the same time is a constant 
struggle. Every successful business must put a quality product on the 
market that fulfills a need. But to continue to do that, you must also 
be able to support a talented pool of employees.
    Today's professional is not merely looking to be well-compensated 
financially--in an era of skyrocketing health care costs and insecure 
retirements, they also seek benefits that afford them a decent quality 
of life. At a time when two-earner families are the norm in our 
society, the professionals we seek for our firm want some measure of 
flexibility in their lives as well--the ability to spend time with 
their children or tend to aging parents and grandparents because long-
term care is so expensive. Since founding Spitfire, we've had six 
employees get married, and three have healthy children. One, sadly had 
a husband diagnosed with cancer and needed to care for him until his 
death this last year. Each of my employees needs help balancing work 
and family. I don't believe they should have to figure this out on 
their own.
    Spitfire offers what I believe is a competitive package to help our 
employees strike that balance, starting with 15 paid holidays and 160 
hours time off for vacation and sick leave annually.
    We offer up to 12 weeks of pregnancy and maternity leave, 6 of 
which is paid, 6 of which are unpaid. We also offer paid paternity and 
domestic partner leave for a birth or adoption.
    We also offer 3 days of paid bereavement leave for employees who 
have lost an immediate family member and in special circumstances grant 
unpaid time off to take care of significant personal business.
    The law doesn't require we do any of this--but we do so 
voluntarily. Why? Some may wonder what kinds of strain it puts on 
business. Others may want to inquire whether our employees are happier 
or more productive.
    Mr. Chairman, no businessman or woman who spends money for nothing 
in return will be successful.
    But in my experience paid leave to care for family matters is money 
well spent. For instance, we have many women at our firm, many working 
at a senior capacity. I'm confident these are the best people in the 
field at what they do. Quite simply, I don't think we would have been 
able to attract or retain many of them were they not assured the 
ability to take the time necessary to start a family.
    Do we miss our employees when they are on leave? Of course. But no 
one can be productive on the job worrying about a sick mother in the 
hospital.
    I myself have taken time off from work to deal with a sick parent--
and while I'm the boss, I can tell you, it sends a good message to the 
rest of the team that they have the same leave benefits as I do.
    As I said, we already do this voluntarily--and other than 
disability insurance which helps pay for part of maternity leave, 
Spitfire ``pays the freight,'' as it were.
    The Paid Family and Medical Leave Act, on the other hand, would 
reduce that burden--either by ensuring that 8 weeks would be paid on a 
shared basis, by the employee, the employer and the government, or by 
providing our firm with a tax benefit because our policy of 12 weeks 
exceeds that of the Federal Government's.
    In either case, paid leave is a win-win for business, a win-win for 
family--and, thus, a win-win for the country. It helps our businesses 
stay competitive and dynamic. It supports our families, as the historic 
Family and Medical Leave Act has for 50 million Americans. Indeed, as 
someone who has worked for almost two decades in this field, I believe 
this legislation will make every bit the historic impact that law has 
in the past decade-and-a-half.
    Mr. Chairman and Ranking Member, thank you for this opportunity to 
testify this afternoon--I look forward to the passage of this 
legislation and hope we can see a day in which every business in 
America has this policy. Surely, it is an idea whose time has come.
    Thank you.

    Senator Dodd. That's pretty good.
    What does Spitfire do?
    Ms. Grimm. We work with foundations and nonprofits to help 
get children covered, and keep the oceans clean--that sort of 
stuff.
    Senator Dodd. Well, I'd hire you in a minute.
    Ms. Grimm. Excellent. Good, I hope that was on C-Span.
    [Laughter.]
    Senator Dodd. I hope so, too. That's very, very good.
    Katie, thank you, thank you for being here, too.

  STATEMENT OF KATHRYN ELLIOTT, ASSISTANT DIRECTOR, EMPLOYEE 
   RELATIONS, CENTRAL MICHIGAN UNIVERSITY, MOUNT PLEASANT, MI

    Ms. Elliott. My name is Kathryn Elliott, and I am the 
Assistant Director of Employee Relations at Central Michigan 
University in Mount Pleasant, MI.
    I commend the subcommittee for holding this hearing on the 
Family Medical Leave Act and appreciate the opportunity to 
provide testimony to you today.
    By way of background, I am a certified senior professional 
in human resources, with over 13 years experience in human 
resource management. As the Assistant Director of Employee 
Relations, a significant part of my job involves helping to 
manage employee medical leaves of absence.
    It's my privilege to appear today on behalf of the Society 
for Human Resource Management, SHRM, of which I am a member. 
SHRM is the world's professional association devoted to human 
resource management and is uniquely positioned to provide 
insight on workplace leave policies.
    Please know that I do not sit before you today as merely an 
HR professional, but as an employee who has personally 
benefited from the act's provisions on several occasions, and 
for that, I thank you.
    As a single mother of three young children, I have used the 
FMLA to take 12-week absences following the birth of my 
children. My need for FMLA, though, continues today, as one of 
my sons has a congenital eye condition, which requires me to 
take full days off work to take him to see his ophthalmologist, 
over 2 hours from our home. My mother also suffers serious 
medical conditions that require me to take time off from work, 
so I'm part of the sandwich generation.
    Therefore, my perspective on the issues before us today is 
based on real experience, but 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 Medical Leave Act was premised 
on this principle. While I believe that HR professionals work 
diligently to assist employees in striking this balance, after 
years of experience administering FMLA leaves, I am also 
confident that this important statute is in need of some 
targeted modifications to ensure that it serves the best 
interests of both employees and employers.
    Undoubtedly, the Family 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 it to, resulting in few challenges 
for either employers, or employees.
    Key aspects of the regulations governing the medical leave 
provisions, however--which provides 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 for both employers, and employees.
    HR professionals have struggled to interpret various 
provisions of the FMLA, including the definition of ``serious 
health condition,'' ``intermittent leave,'' and ``medical 
certifications.''
    Central Michigan University, just like any other covered 
employer, has its share of challenges administering 
intermittent leave requests. In my written statement, I've 
outlined three specific cases at my organization that 
demonstrate the challenges employers experience in implementing 
the medical leave portion of the FMLA.
    In one case, an employee in the University's library was 
certified for FMLA intermittent leave for asthma and migraine 
headache. The medical certification placed no parameters on 
frequency or duration of leave. The employee proceeded to 
exercise her intermittent leave rights on a regularly, 
irregular basis. In 2005 alone, she was absent 76 times under 
intermittent FMLA, and that was an improvement over the prior 
year's absence frequency. Each of these absences was 
unscheduled and unanticipated. Each absence left the office 
with no way to plan for temporary coverage, and customer 
service suffered.
    From January 2005, through the end of October, this 
employee worked a full, 40-hour work week only 7 times. After 
her FMLA leave balance exhausted at the end of October, she did 
not miss another scheduled day during the balance of the 
calendar year. Her absences resumed in 2006 when her FMLA leave 
balance was restored.
    Mr. Chairman, 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. Although not perfect, this proposal 
should, in fact, improve FMLA administration in the workplace.
    Mr. Chairman, SHRM shares Congress's interest in providing 
families additional work flexibility, but we are concerned 
about proposals to expand the Family Medical Leave Act, given 
the problems administering the FMLA leave as it exists today. 
While well-intentioned, proposals that build on a flawed FMLA 
framework will only exacerbate the significant challenges both 
employers and employees currently encounter.
    SHRM applauds the subcommittee's examination of the FMLA to 
gauge 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.
    The Society looks forward to working with the subcommittee 
to craft practical workplace flexibility policies that meet the 
needs of employees, families, and employers.
    Thank you, again, for inviting me here today, and I look 
forward to answering your questions.
    [The prepared statement of Ms. Elliott follows:]
              Prepared Statement of Katheryn Elliott, SPHR
                              introduction
    Chairman Dodd, Ranking Member Alexander and distinguished members 
of the subcommittee, my name is Katheryn Elliott and I am the Assistant 
Director of Employee Relations at Central Michigan University in Mt. 
Pleasant, MI. 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 have a master's degree in Human Resource 
Administration and I am a certified senior professional in human 
resources with over 13 years experience in human resource management. 
My experience includes work in government as well as the public and 
private sectors. As the assistant director of employee relations, it is 
my job to ensure employer compliance with State and Federal laws, 
employee union contracts, and internal policies. Within this framework, 
a significant part of my job involves helping to manage employee 
medical leaves of absence.
    It is my privilege to 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 I do not sit before you today 
as merely an HR professional, but as an employee who has personally 
benefited from the act's provisions on several occasions. As a single 
mother of three young children (twin boys, age 7 and a 4-year-old 
daughter), I have twice used the FMLA to take 12 week absences 
following the birth of my children. Spending the first 3 months of 
their lives with my children was an opportunity and a blessing that I 
will always be grateful for and I would not have had were it not for 
the job protection provisions of the FMLA. My need for FMLA continues 
today but for different reasons. One of my sons has a congenital eye 
condition which requires me to take full days off work to take him to 
his treating ophthalmologist over 2 hours from our home. My mother also 
suffers from serious medical conditions that require me to take time 
off from work. The benefits afforded under the FMLA allow me to take 
time off as necessary for the care of my loved ones 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--many of whom, 
especially in my home State of Michigan, are struggling financially--
and above all a deep respect for the process which you undertake today. 
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, 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. 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 targeted 
modifications 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.
                        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 6 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.
    Central Michigan University, just like any other covered employer, 
has its share of challenges administering intermittent leave requests. 
I would estimate that of the hours we devote annually to FMLA 
administration for our nearly 1,300 eligible staff members, 
approximately 80-90 percent of our time is spent managing intermittent 
leave. Of that, approximately 80 percent of our efforts annually are 
spent managing 2 to 4 cases in which absence patterns, employee 
behavior, and vague medical documentation would have us (cautiously) 
draw the conclusion that we are dealing with employee misuse of the 
FMLA.
    Three recent cases demonstrate just how difficult administration of 
the act can be in cases of intermittent leave.
Case 1: Office professional employee employed in the University's 
        Library
    The University Library operates an inter-library loan service. This 
is a critical service for students as well as faculty. It supports 
research and learning by allowing faculty and student access to 
materials not part of our own holdings. The exacting nature of the 
work, coupled with very tight staffing and a very spare budget, 
provides virtually no opportunity to plan for extra or temporary help 
in the office. In 2004 and 2005 a clerk in this office was certified 
for FMLA intermittent leave for asthma and migraine headache. The 
medical certification placed no parameters on frequency or duration of 
leave. The determination of when leave was needed was left to the 
employee. The employee proceeded to exercise her intermittent leave 
rights on an ``irregularly regular'' basis. In 2005 alone, she was 
absent 76 times under intermittent FMLA--and that was an improvement 
over the prior year's absence frequency.
    Each of these absences was unscheduled and unanticipated. Each 
absence left the office with no way to plan for temporary coverage. Her 
supervisor was occasionally able to shift time away from her other 
duties to deal with the must urgent customer service problems--but 
that's no way to run a business. Customer service for faculty, 
students, and other members of the inter-library loan consortium 
suffered--and there was little the office could do about it. The office 
reported that some consortium members were considering cancelling their 
library exchange relationship with our University because of the 
erratic service and delays in responding to exchange orders.
    From January 2005 through the end of October, this employee worked 
a full 40 hour week only 7 times. After her FMLA leave balance 
exhausted at the end of October, she did not miss another scheduled day 
during the balance of the calendar year. Her absences resumed in 2006 
when her FMLA leave balance was restored.
Case 2: Custodial employee employed in the University's Building 
        Services Department
    The University employs 91 custodians to provide environmental 
support services on campus. These custodians are represented by a 
collective bargaining agent. One custodian has had an ongoing 
absenteeism problem that has been exacerbated by his use of FMLA 
intermittent leave. At various times he has been certified for FMLA 
leave for miscellaneous lower back problems, upper respiratory 
problems, and more recently for ``panic attack/anxiety disorders.'' 
Each of these certifications has given control of the timing and 
duration of intermittent leave to the employee. He decides when he is 
going to be out and for how long. In 2004, this employee had 48 
intermittent leave episodes. In 2005, the frequency jumped to 104 
episodes. In 2006, the frequency dropped to 34 episodes, but the 
duration of each episode increased. Although this employee's position 
was rated at 1.0 FTE, his absences resulted in a 4-year cumulative 
average effective FTE of just over 55 percent. In those years, with one 
exception, he worked just enough hours to qualify him for FMLA in the 
next calendar year. In one of those years, he did not qualify for FMLA 
because he had not worked the requisite 1,250 hours in the prior 12 
months. His absences were reduced to almost none until early April of 
that year, when he was able to qualify for FMLA, having at that point 
met the ``hours worked'' requirement. Beginning with his FMLA 
qualification in April, he resumed his ``normal'' absence pattern.
    While the Building Services Department has more flexibility in the 
use of temporary employees as compared to the Interlibrary Loan Office, 
the use of temporary staff in a collectively bargained environment 
generates a tremendous recordkeeping burden on the employer. Temporary 
staff has to be tracked on a daily basis, and their movement and 
assignment reported to the local union for monitoring purposes. This is 
time consuming and costly. In addition, while this employee is on FMLA 
leave, the University is covering not only his wages, but also the 
wages of his temporary replacements.
Case 3: Office professional employee in Facilities Management Business 
        Operations
    This is an emerging case to demonstrate what employers can see 
develop and how we are virtually helpless to address our concerns.
    This professional employee began her employment with the University 
in April 2006. In her first year of employment, her supervisor 
counseled her for excessive absence due to illness. On October 31, 
2007, her supervisor met with her to point out that her absences in the 
12-month period from October 1, 2006 through September 30, 2007 were in 
excess of 80 hours. The employee was asked if she was familiar with the 
FMLA and advised that if she felt she had an FMLA qualifying condition 
she should submit medical documentation to support this. Her response 
was:

    1. That the first doctor she saw would not place her on FMLA, and
    2. That she had found another doctor who she would meet with the 
following week to see if he would place her on FMLA. Barring that she 
and her supervisor would need to ``revisit the issue and come up with 
another solution.''

    On November 6, 2007, this employee submitted FMLA paperwork 
indicating that she suffered from migraines which might limit her 
ability to work up to twice monthly for a period of 2 to 24 hours each 
occasion. In the days that remained before the University shut down for 
year end, (12/21/07) this employee missed 5 full work days for her FMLA 
condition. Two of those days fell on Mondays and two on Thursdays.
    In January, per departmental policy, the employee was required to 
recertify her FMLA qualifying condition. Her certification, received 
January 7, 2008, almost 2 months to the day from her original 
certification, and issued by the same treating physician, stated that 
this employee was improving, but might be unable to work as many as 9 
times a month for periods of 2 to 24 hours each occasion. As of 
February 11, 2008, this employee has missed 6 full work days for her 
FMLA condition. Three of these occurrences fell on Mondays and three 
fell on Thursdays.
    In addition to the employer's concern about the substantial 
increase in possible time off, there is a clear pattern of absences on 
Mondays and Thursdays. We, as her employer, are left in a difficult 
situation. Second opinions are difficult if not impossible to obtain 
under the FMLA, and we find ourselves in the uncomfortable position of 
not wanting to second-guess the documentation of a medical professional 
(and there certainly is no means by which we could), and yet we see a 
pattern of absence which seems unusual. Our only option, given the 
current regulations, is to notify the treating physician of the pattern 
of absences and ask if the pattern is consistent with the diagnosis, 
but again we must rely on the physician to address the matter with 
their patient. If the physician, for whatever reason, makes no change 
to the original documentation, the department must simply accept the 
absences and wait for a new recertification year. This position manages 
a call center of the University, which must be staffed at all times. In 
this employee's absence other staff must be pulled away from their 
accounting and payroll tasks (all extremely time sensitive) to cover 
the departmental phones.
    The aforementioned case points to another concern that can very 
often complicate the administration of leaves under the act. Regularly, 
medical documentation is vague or open ended, making it difficult for 
departments to know what absenteeism pattern to expect from an employee 
and giving him/her unlimited discretion to claim an FMLA absence, but 
without an attendant responsibility to provide clear and thorough 
documentation.
             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.
    As you know, 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.
    SHRM was pleased to learn that earlier this week the Department of 
Labor issued proposed rules to update the Family and Medical Leave Act 
regulations. Although SHRM is still reviewing the details of this 
substantive rule, it appears that a number of the Department's proposed 
changes would, in fact, improve FMLA administration in the workplace. 
While our evaluation of the proposal continues, it does appear that the 
proposed rule stops short of significantly improving the definition of 
a serious health condition. Despite this shortcoming, SHRM believes 
this regulatory action is an important step toward restoring the 
balance intended by Congress between employers' needs for employees 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 given the problems administering 
current 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 respectfully requests that Congress fix the documented 
shortfalls of the FMLA before considering additional leave benefits 
under this important workplace statute.
                               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, families, and 
employers.

    Senator Dodd. Well, thank you very, very much, Ms. Elliott, 
I appreciate your testimony--all of you, very, very good 
testimony, very, very helpful, and thank you all for being 
here.
    Let me raise some questions, if I can, for you. As I do so, 
since it's just me and you here, we can--if there's a response 
to a question and someone would like to raise an issue in the 
midst of it--we can do this very formally, or informally, let's 
try and do it a bit more informally, if you can, as well.
    I didn't raise the issue and I intended to, with the 
Secretary regarding the intermittent leave policy, and I'll 
submit that in writing, Ms. Lipnic, to you, as well. We covered 
a couple of the other issues, but the intermittent leave issue 
has also been an issue raised, about how do you give advance 
notice in an emergency? The obvious question, so I'll save that 
for you.
    Let me raise Debra, with you--as someone whose spent a long 
time working on these issues--what do you see as the barriers 
to expanding the legislation? How do you suggest we overcome 
these? You've been involved in this along the way, and so have 
an appreciation of the history.
    Ms. Ness. Well, as I said in my comments, we hear some of 
the same arguments opposing expansion of the Family Medical 
Leave Act as we did back in the early eighties when we first 
began this campaign for making workplaces more family-friendly. 
Generally these dire predictions don't materialize.
    You yourself noted the last survey the Department of Labor 
did of employers, and employees, showed that about 90 percent--
over 90 percent--of employers said that it neither had no 
effect or a positive effect on growth, on profitability, and on 
employee morale.
    We know, for example, that the State of California passed a 
paid Family Medical Leave law in 2004. The dire predictions of 
economic dislocation, so far, have not materialized in 
California. Fortunately, there are seven States in the past 
year that have begun to explore similar types of paid Family 
Medical Leave laws in their own States.
    But, I think one of the problems we have is that we really 
need a major paradigm shift, in terms of how we think about the 
workplace. The realities that families face today are very 
different than what they faced decades ago. In three-quarters 
of families, both parents are working. There isn't a full-time 
caregiver at home, and so we need to bring our workplace 
policies, our workplace thinking, up to date.
    Lots of folks think of these work/family policies as a 
luxury, as a nice fringe benefit. They really aren't. They're 
all about economic security, economic survival for families. 
The ability to take leave at a crucial time, and time of 
emergency, time of illness, can make the difference between 
whether somebody can continue to put food on the table, keep 
their job, keep their health insurance, or begin a spiral down 
into economic disaster.
    I think we've reached a point where we talk a lot about the 
importance of strong, healthy families, we say families are the 
backbone of our society, but we've done very, very little as a 
nation to really put those kinds of values to work. Our 
policies don't reflect it.
    Senator Dodd. Let me ask you this, you listened to Ms. 
Elliott, who's admittedly a beneficiary of a Family Medical 
Leave policy in terms of her own child, and mother, father, 
that has an illness to deal with, but yet raises some questions 
and suggests we should not probably go forward with all of this 
until we straighten out the problems with the existing law. How 
would you--how do you answer Ms. Elliott's concerns?
    Ms. Ness. Well, I would say first of all, I would certainly 
acknowledge the fact that there are individual cases of abuse 
of the law. But I don't think that that means that we need to 
dramatically change the law, or dramatically change the 
regulations. I think we don't have data that really are 
scientifically sound. It would be good, for example, for the 
Department of Labor to repeat the kind of survey that it did in 
2000, so we could really understand in a more scientific way, 
what's really going on, what's working well for employers, and 
what's working well for employees.
    For every story of an employer that experiences that kind 
of dislocation that you described, I think there are employees 
who find themselves in positions where they desperately need 
leave, and their efforts to get it are thwarted by an employer 
who really doesn't want to give them the leave.
    So, rather than talk about anecdotes, and rather than be 
confused by management or disciplinary problems, I think we 
really need some sound data on how the law is working, and 
whether it's working well, or not, from both the employee and 
the employer perspective.
    Senator Dodd. Let me ask you this, Debra. The Secretary 
mentioned, which didn't surprise me, since I'm aware of this, 
but there's actually no way to determine of the 7 or 8 million 
people that took Family Medical Leave in 2005, is that right, 
whether or not people took it because of a serious illness, or 
whether or not people had the flu? Is it appropriate to be 
asking that there's some sort of data that we ought to be 
accumulating here as to looking over the people who take family 
and medical leave, what are the reasons that people are taking 
it, so we can develop some data?
    Ms. Ness. I think that would be enormously helpful. We are 
still going on data that is 8 years old. We know, for example, 
that about half of people take the leave for their own serious 
illness or chronic health condition, but we don't know how that 
breaks down.
    We know that people take it, in other cases, for family 
reasons. The other half, probably about half for parental leave 
purposes, and probably about half are taking care of another 
family member, but we don't have much more data than that, it 
would be very helpful for us.
    Senator Dodd. Is there anything intrusive about that 
request?
    Ms. Ness. I think there are ways to ask for information 
about why people are taking leave without intruding in their 
personal medical situations.
    Senator Dodd. You're not before the committee right now, 
Madame Secretary, but I want to talk with you about that. I'm 
sort of surprised, given everything else the Department of 
Labor has done on this issue whether or not we have some 
restrictions in the law that we passed that prohibit you from 
gathering information that would give us a better picture or 
not. I know you're sitting right there so--let the record 
reflect that she was happy to reply to that.
    [Laughter.]
    Ms. Reid, thank you again for what you do. I was wondering 
here, just--you cited the problem you had with your employer at 
the time, and again, sort of similar it seems to me to some of 
the testimony we heard earlier from the Secretary and others 
about the proposed new regulations that would require 
additional information at a time when you feel the need to 
actually be there, creating some logistical issues.
    I'm also interested in terms of how ACORN works. ACORN 
works with, of course, the very poorest in our society, and how 
we could make people more aware of this. Despite the fact that 
we've talked, about 50 or 60 million people have actually taken 
advantage of this. You have to be, and again, it's--I've 
noticed in various places I've been, there are actually notices 
of what rights employees have, but it's pretty fine print, and 
you've got to read it, and sometimes there are acronyms and 
words to describe things, and if you're less well-educated, you 
might not know what all of this means, and whether or not you'd 
qualify--what should we be doing to make sure that more people 
are aware and knowledgeable? Particularly among those who are 
working in some of these very low-paying jobs, and may have 
similar problems, and may not be able to afford to do this--
I'll put aside the argument of the paid leave for a second, but 
just raising the level of awareness--how do we do a better job 
with that? How could the Department of Labor help in that 
regard?
    Ms. Reid. I've worked in personnel for a very long time. 
What I've found is when people are first hired, they should be 
given a packet, and explained what some of their benefits are. 
Not just handed a packet. If they have limited abilities to 
read, or they're not very good at speaking English, or 
something of that nature, they can't read the packets that 
they're given, and they don't go through them.
    I, myself, often receive huge amounts of information and 
don't read it all. But the important pieces of information 
should be explained to them--the days they have off, the access 
that they have to the Family Medical Leave Act, the access to 
disability insurance, social security withholding--I think they 
should know that. The same as when they're exiting a job, they 
should have that information spelled out to them in a way 
that's accessible.
    Very often in low-paying jobs, all of those things are 
posted, but these people never have an opportunity to read it. 
They have very short lunch breaks, their time is very 
monitored--they're not reading any of this, they're just 
running back and forth to work, and no one's explaining it to 
them.
    So, I think that that is an excellent way for employers to 
make it accessible.
    Senator Dodd. Now, let me ask you this, I was curious, you 
went through this--what seemed to be a little, some tension 
between you and your employer at the time you decided to take 
this time. What happened when you got back to work? How did it 
affect your relationship with your employer?
    Ms. Reid. Well, when I got back to work, they immediately 
attempted to demote me, and I hired a very good attorney and it 
didn't happen. But, in my case, they attempted to demote me and 
it just turned into a very protracted and very long battle. The 
problem is that I worked for a good, a fairly decent employer. 
Of the four people at my job that took off FMLA, all of them 
were retaliated by, in some form or another.
    Senator Dodd. Well, I'd like to--that's more data maybe we 
ought to be collecting to some degree, we talked about the 
problems that people have taking it, but I suspect we probably 
don't know a lot about follow up in terms of what happens when 
people come back. I've often wondered whether or not you're 
thought of as being less of a faithful, loyal, dedicated 
employee if you're out there.
    I know, for years I've heard, of course, the anecdotes--
particularly from women--about sort of, I'll call it, I don't 
mean to say lying, but come up with every excuse rather than 
admit there's a family issue--talk about plumbers not showing 
up and tires going flat, but the idea that you'd admit to an 
employer that, actually my children was sick, or there was a 
day off from school and the babysitter didn't show up--all 
these other ideas, never wanting to admit that there's a family 
issue. Admission of a family problem is an indication you're 
not quite as dedicated as you ought to be. People will 
manufacture--I ought to use a better word, rather than lying--
manufacturing, sort of, excuses that seemed more palatable to 
the employer, maybe more understandable.
    Sometimes dealing with individuals who never had to worry 
about whether or not the babysitter showed up or the caregiver 
showed up or the child care center was closed or whatever else 
happened. Whether or not people react to that, somehow, once 
they discover that you've got family issues, to what extent do 
people, then, pay a price for having exercised this right, in 
fact, done what they've done. Do you want to comment on that?
    Ms. Reid. I've worked next to women who have had children, 
and not mentioned them, because they were on a career path, and 
they thought the best thing to do is just simply not mention 
their children. I don't think they were any less of a mother 
than anyone else, they just thought that it would impede their 
progress, and so they, they just simply didn't talk about their 
children, they didn't have pictures out, they didn't mention 
it.
    Senator Dodd. Well, it may be worthwhile, if the Department 
of Labor does another survey, they might inquire in the surveys 
as to what has been the reaction of employers with employees 
coming back, and how they're being received, and what sort of 
problems emerged, and to what extent. I hope not to the level 
you had to go through--hiring a lawyer to protect against being 
demoted because you spent time with a dying mother, in those 
circumstances.
    Thank you very much.
    Ms. Grimm, now that I've promoted your business here and--
just a lot of questions, you answered a lot of them in your 
testimony, but you were very, very good and made a strong 
case--it almost seems, the questions seem a bit redundant here, 
but let me--obviously you're competitors--how are you doing as 
a business in all of this? I mean, I presume an awful lot of 
your competitors may not be quite as aggressive as you've been 
in providing these kind of leave policies for your employees. 
Or have they? Maybe I'm wrong in my assumption.
    Ms. Grimm. I honestly don't know. I mean, for me, I started 
a company, I didn't have a lot of people to look to, but I will 
say that, just early on, I figured out if you allow people to 
have time to deal with their family issues, it helps them be 
more productive at work. So, I don't look at a lot of 
Department of Labor surveys myself, but I come to work and look 
around and see if people are working, and it's good when they 
are.
    Senator Dodd. You've recognized that you--as I recall you 
said in your testimony, that obviously, you lose someone for 
awhile, it causes a problem, I mean, no one would be foolish to 
suggest otherwise.
    Ms. Grimm. Yes, well you need to have a Plan B, but I think 
that's just good business, again, it's whether or not it's 
planned, somebody happily gets pregnant, and you have a Plan B, 
which is how are we going to get through this? Are you bringing 
in temporary help, are you having other people, you know, hold 
the fort while they're gone.
    Or, in some instances, you just don't know. I had an 
employee whose son just had tremendous problems breathing, and 
she kept having to miss work, because literally, they were in 
the emergency room constantly. You can't plan for that, after a 
while, as a company, you just know--if you're 30 people, 
there's going to be something going on with somebody all the 
time, and you deal with it as a company.
    You create a climate where they can count on us, and we can 
count on them. I mean, there's plenty of times I send my 
employees out on Sunday to go do something which is on their 
family time, and they go, uncomplaining, because they know I'm 
going to be OK when they have to take a child to a doctor's 
appointment on Tuesday.
    Senator Dodd. Yes, I was going to raise that issue, I don't 
know how you, it's hard to demonstrate that from a data 
standpoint, but I've heard this so often anecdotally about 
employers who, where there's a recognition that that's the 
case, that there is a sense of loyalty and retention and 
productivity that is--I guess you could make the case that 
either before or after policies go into effect, you might be 
able to do some comparison on that regard, in terms of those 
issues. Of course, you've had these policies all along.
    But clearly, the anecdotal evidence from your experience is 
that there is a deep appreciation. I presume there have been 
people who've tried, you've got very good employees, people 
have tried to hire them away from your company?
    Ms. Grimm. Yes.
    Senator Dodd. I don't know the answer to the question, but 
I'm suggesting by your comments, here, that you've been able to 
retain people because of these policies, too.
    Ms. Grimm. I have very low turnover at my office.
    Senator Dodd. That's good to hear, as well.
    What incentives do you think that--our legislation talks 
about employers who employ 50 or more people, that was the 
definition, that's an excessive definition of small businesses, 
the one I had to accept when I wrote the legislation. But 25 is 
normally the definition of, 25 or less is the definition of a 
small business, and obviously a lot of people work at these 
smaller businesses--a lot of women work at smaller businesses. 
Have you looked at the paid leave proposal we've suggested?
    Ms. Grimm. I have, and as I understand in both options, 
would be a benefit to me. I mean, one is--I think when you're 
building a business, you do want to build to, ultimately, I 
hope 1 day I'll be a 50-person office, or a 51-person office, 
and at that point, I don't suddenly want to have to look at 
Department of Labor regulations, so I think it does really 
help.
    But it would help me now to know that either through tax 
breaks--some sort of tax incentive to the company, or if there 
was some kind of shared system between the employee/employer 
and government, it would help a lot, being able to offer some 
of these leave policies, especially when I know, we've been 
talking about women a lot, which I really appreciate, but I 
have a lot of men who have just gotten married in my office, 
and I fully expect they're going to want to do paternity leave, 
and they could very likely end up being the primary caregiver, 
and I want to make sure that policies are in place for them, 
too, to be able to take paid and unpaid leave.
    Senator Dodd. My experience with men has been that usually 
they take about 6 weeks of that 12 weeks.
    Ms. Grimm. Yes.
    Senator Dodd. That second 6 weeks, they want to get back to 
work.
    [Laughter.]
    Ms. Grimm. It's a new generation, Senator.
    Senator Dodd. That's just empirical data I've collected in 
my own office, I've noticed. ``Don't you need me back there 
this week to do these jobs?''
    Ms. Grimm. Yes.
    Senator Dodd. Well, you sound like you've read the bill, 
because the idea is a shared cost between employer, employee 
and the government. As Debra pointed out, and I believe you've 
done a survey, Debra, is this right on the--it actually had 
some rather positive responses. You indicated that, but--
    Ms. Ness. Yes, there's a survey this year in which we asked 
people how they would feel about contributing a small amount 
toward a Family Leave Insurance Fund, and----
    Senator Dodd. Well, why don't we explain what we're talking 
about, we're talking about a dollar a week?
    Ms. Ness. A dollar a week per employee, and a dollar a week 
per employer. And high seventies----
    Senator Dodd. For the insurance fund we're talking about.
    Ms. Ness. Yes, to an insurance fund.
    Senator Dodd. Yes, it was, it had like a 75 percent----
    Ms. Ness. Yes.
    Senator Dodd [continuing]. Yes, response to it. Of course, 
that is exactly what you're talking about, that also relieves 
that kind of pressure economically.
    Ms. Grimm. Exactly. Especially for the ones that are 
unplanned. Again, I did have an employee whose husband was in 
the Army, he got diagnosed with cancer and was going to die. 
She had two young children, and you know, she had to take a 
significant amount of leave, and unplanned for, for us.
    Senator Dodd. Time is running short here on this, Ms. 
Elliott, but let me, and I'll submit some of these questions to 
you, as well, but you raised the very issues we raised with the 
Secretary earlier, about intermittent leave and serious 
illness.
    Senator Dodd. Why don't you share--how would you define 
serious illness? You heard, that visiting the doctor twice a 
year is what the Department of Labor is talking about, and I 
gathered from the conclusion of your testimony that that's just 
too lax a definition in your mind, is that right?
    Ms. Elliott. No, actually, and SHRM did provide some 
feedback to the Department of Labor's request for information 
on that matter.
    No, I wouldn't say that two times is too lax. I would take 
this opportunity to speak to, perhaps the question that I think 
has been raised here with regard to chronic conditions and 
requirements--
    Senator Dodd. Yes.
    Ms. Elliott. To recertify on a regular basis. Simply not to 
take a position, per se, but to also point out that though 
chronic conditions may be lifelong, advances in medicine, 
treatment plans and some changes within even the employee might 
make the condition either improve or worsen through time. So, 
when we have--and we have examples at CNU with an employee who 
had migraines, and then through treatment of the migraines, and 
another condition, we saw a great improvement in her FMLA 
usage--a decrease in her FMLA usage. She no longer needed that.
    Were we to have taken her original certification, a 
lifelong condition, and gone with that, we might not have had 
the benefit of understanding that her condition was improving.
    Senator Dodd. How about the issue of the intermittent leave 
policy? You know, that idea, and again--it's been suggested, 
the idea obviously when you have emergencies that pop up, 
giving notice 2 days in advance of an emergency sometimes seems 
inherently contradictory.
    Ms. Elliott. Well, certainly there will be times when you 
can't give notice in advance, but certainly the majority of 
needs will give you advance notice, such that you can call your 
employer.
    I think, it was my understanding that really, we were 
leaning more toward the question of, shouldn't an employee, at 
least within the 2 days--is it too much to ask the employee 
within 2 days of the commencement of the absence, to make 
notice to the employer? I think certainly that is something the 
employer has a right to have communicated to them, as soon as 
possible.
    Senator Dodd. When there's a known event, you're talking 
about?
    Ms. Elliott. When an event, even unplanned, should happen, 
I think in most cases there should be an opportunity for the 
employee to contact the employer.
    Now, there will be cases when the employee themselves are 
in the emergent situation, and certainly can't pick up the 
phone from where they are.
    Senator Dodd. Why wouldn't we do a--you listened to your 
seat-mate here, Ms. Grimm, talk about what she goes through to 
provide for her employees, and how much it would help her as a 
new, emerging, successful smaller business here, to be able to 
have an insurance program such as we've described here, whether 
it be a contribution shared by employers, employees--why should 
we wait to do that? I mean there seems to be a trend where 
employers are beginning to recognize the value of leave 
policies here, from the very points that have been raised, I 
don't think it's some sort of a conversion on the road to 
Damascus here, it's the realization, this is good business. You 
want to attract good, bright, smart people and keep them. 
You're in a competitive environment, having good policies that 
reflect family needs is smart business. So, we get people doing 
that--it's a cost.
    Here we all have an advantage, if there's a shared 
responsibility in this, minimizing the cost to business that 
are trying to grow, why should we wait, in the sense? There are 
always going to be issues raised about these policies, they're 
going to change, nothing's--it's organic, I understand that, as 
the world changes we're going to be back reviewing these 
policies, and we should. We shouldn't be afraid of that, in my 
view.
    But, I'm quite mystified by why we should wait to move to 
the next phase of this, given the direction we seem to be going 
in?
    Ms. Elliott. Well, that's a very good question, and thank 
you for asking that. I think that may apply to both expansion 
efforts, as well as those that SHRM is in support of, which is 
to further define the regulations as they exist today so that 
it's easier for employers to administrate.
    On the matter of intermittent leave, I actually have a 
couple of comments related to that, and becoming an employer of 
choice, as all of us would want to be. When we're an employer 
of choice, we have a much better candidate pool from which to 
select, we get the best and the brightest talent, the most 
qualified workers. Many employers are choosing to provide 
packages which go above and beyond that which is required, and 
I would offer two responses to that.
    First is, that mandated benefits, in my opinion, this is my 
opinion only, I don't believe mandated benefits improve 
employee morale or commitment to the employer. I don't believe 
that an employee who is receiving the mandated benefit of 
minimum wage is any more or less committed to their employer 
than someone who doesn't have that, because, I mean, it is a 
mandated benefit, it is there. Overtime provisions under the 
FLSA are there. It is when an employer can become an employer 
of choice, and reach beyond that, that you see the higher level 
of commitment.
    But, with regard to shared cost of an insurance policy, and 
I'm just now becoming familiar with this idea, and it's a very 
interesting concept--one that I would like to see explored 
further. Having said that I'm just becoming aware of that, I 
then would ask, because I don't know, within this proposal, 
within this idea, this concept of shared pooling of resources, 
and then in turn, paying the employee for their absence--is 
there a comparable support of employers, such that an employer 
whose employee is benefiting from the pool, may also receive 
some sort of credits to support additional staffing needs that 
they may have? Or administration of that family medical leave? 
So, I am more in a position to ask questions now than to offer 
comments.
    Senator Dodd. Well, I appreciate that, and I'm going to 
apologize to all of you, we've got a vote on, and I've got 
about 2 minutes to make it to the floor of the Senate to cast a 
ballot. What I'm going to do is leave the record open. I have 
some additional questions, but also other members may have as 
well.
    Senator Dodd. I apologize to all four of you, they're 
excellent points, you've been excellent witnesses, and I'm very 
grateful to all of you.
    I note here, as well, members of Congress, here--no one's 
ever suggested a Member of Congress ought not to get paid when 
they take family and medical leave, and many do. In fact, 
they'd be chastised if they didn't, politically, probably 
highly criticized if they didn't have enough sense to make a 
choice between being here for a committee hearing, or being 
with a family member that was in need of their help. But no one 
has ever suggested they ought not to be paid for the period 
they're away from Congress during those moments. I'm hopeful 
that some of my colleagues here who are resistant to this idea 
of sharing these costs would recognize how beneficial it could 
be to all of us.
    You've been great witnesses, I thank you all, very, very 
much, and we'll look forward to your comments to the additional 
written questions.
    The committee will stand adjourned.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                 Prepared Statement of Senator Clinton

    I would like to thank Chairman Dodd and Ranking Member 
Alexander for holding this hearing, on an issue so near and 
dear to my heart.
    The Family and Medical Leave Act has helped more than 60 
million men and women seeking to balance the demands of work 
and family. Many of us on this subcommittee worked on this 
landmark legislation when it was enacted more than 15 years 
ago. Chairman Dodd, who led the effort to write and enact the 
FMLA years ago, continues to be a strong leader in working to 
safeguard and expand the FMLA's protections. I am proud that 
earlier this year, Chairman Dodd and I worked together to 
introduce and secure passage of legislation to extend FMLA 
benefits to the family members of wounded service members for 6 
months, a key recommendation of the Dole-Shalala Commission on 
Care for America's Returning Wounded Warriors.
    While we should applaud the progress we have made to 
support America's hard-working families, there is still a lot 
of work to do. Forty percent of workers are currently 
ineligible for FMLA benefits because they work part-time, are 
new to their jobs, or work for small employers. Likewise, close 
to half of all private employees have no paid sick leave, and 
many more are unable to take time off to care for a sick child. 
We should be strengthening the FMLA to cover more working 
families and provide paid sick leave, as well as enact other 
measures to give employees the flexibility they need to care 
for themselves, their children, and their loved ones.
    I am troubled that the Administration's proposed 
regulations seem to be walking us away from this goal, by 
placing a number of roadblocks in the path of employees who are 
trying to obtain leave under the FMLA. The regulations would 
make it more difficult for employees to claim paid leave when 
it is available to them, by requiring that the employers' leave 
policies take precedent over the FMLA; by requiring employees 
with chronic health conditions to obtain an annual 
certification that they are able to do their job or risk being 
transferred to a different job; by allowing employers to 
communicate directly with medical providers for the purposes of 
understanding the employees condition; and much more.
    The FMLA has made all the difference in the lives of 
Americans who otherwise would not be able to take time off from 
work to care for a sick child or parent. We should be building 
on that foundation, not eroding it. I look forward to working 
with my colleagues in the Senate to submit comments to the 
Department of Labor on these proposed regulations, and I call 
on my colleagues to join me in working to enact legislation to 
expand rather than narrow the FMLA's ground-breaking 
protections.
    Thank you.

                Prepared Statement of Senator Alexander

    I would like to commend the Department of Labor for recent 
action to update the 15-year-old Family and Medical Leave Act 
(FMLA) regulations. The Department's proposal seeks to strike 
an appropriate balance by streamlining the regulations after 15 
years of court decisions interpreting the FMLA, and by making 
the regulations more user friendly for employees and employers.
    President Reagan once said, ``Government must keep pace 
with the changing needs of our State and its people to be sure 
that government can fulfill its legitimate obligations.'' This 
certainly rings true in the case of the FMLA. When the 
Department issued its regulations to implement the FMLA 15 
years ago, its decisionmaking was based upon assumptions, not 
experience. This was to be expected, as the FMLA was not only a 
new law, but very different from other labor and employment 
laws, such as those that deal with wages and work hours.
    What the Department had to do back in 1993 was to look at 
the parameters of the statute and then make its best guesses as 
to how to implement the law. It had to answer questions such as 
``How should employers tell employees about their FMLA 
rights?'' and ``How should employees request FMLA leave?'' 
Since the Department had no experience in administering a leave 
law, ultimately it produced regulations based on what the 
regulators expected would happen at the time. Now the 
Department has the benefit of 15 years of real world experience 
as it seeks to update those regulations for the future.
    Again, I want to thank the Department for its thoughtful, 
careful review of the issues, and for its consultations with 
Congress as it considers appropriate regulatory changes. What 
has emerged is a proposed regulation that, as President Reagan 
said, keeps pace with the changing needs of our Nation and its 
people. Fifteen years of experience with the FMLA--along with a 
diligent study of the issues and dialog with stakeholders--has 
resulted in a balanced, common-sense proposal that I hope will 
garner bipartisan support.

    Prepared Statement of Retail Industry Leaders Association (RILA)
    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.
Prepared Statement of Matthew Melmed, Executive Director, Zero to Three
    Chairman Dodd and members of the subcommittee, my name is Matthew 
Melmed. For the past 13 years I have been the Executive Director of 
ZERO TO THREE, a national non-profit organization that has worked to 
advance the healthy development of America's babies and toddlers for 30 
years. I would like to start by thanking the subcommittee for its 
interest in building upon the successes of the groundbreaking 1993 
Family and Medical Leave Act. I would also like to thank the 
subcommittee for providing me the opportunity to discuss the critical 
importance of paid family leave for our Nation's youngest families, 
those with newborns, infants and toddlers.
       the importance of unhurried time in the first year of life
    Science has significantly enhanced what we know about the needs of 
infants and toddlers, underscoring the fact that experiences and 
relationships in the earliest years of life play a critical role in a 
child's ability to grow up healthy and ready to learn. We know that 
infancy and toddlerhood are times of intense intellectual 
engagement.\1\ During this time--a remarkable 36 months--the brain 
undergoes its most dramatic development, and children acquire the 
ability to think, speak, learn, and reason. The early years establish 
the foundation upon which later learning and development are built. If 
experiences in those early years are harmful, stressful, or traumatic, 
the effects of such experiences become more difficult, not to mention 
more expensive, to remediate over time if they are not addressed early 
in life.
    Research demonstrates that forming secure attachments to a few 
caring and responsive adults is a primary developmental milestone for 
babies in the first year of life. During the earliest days and months, 
children learn about the world through their own actions and their 
caregiver's reactions. They are learning about who they are, how to 
feel about themselves and what they can expect from those who care for 
them. Such basic capacities as the ability to feel trust and to 
experience intimacy and cooperation with others develop from the 
earliest moments of life.
    According to the groundbreaking report released by the National 
Academies of Science, From Neurons to Neighborhoods: The Science of 
Early Childhood Development, a young child's parents structure the 
experience and shape the environment within which early development 
unfolds.\2\ Early relationships are important for all infants and 
toddlers, but they are particularly important for those living in 
lower-income families because they can help serve as a buffer against 
the multiple risk factors these children may face. These early 
attachments are critical because a positive early relationship, 
especially with a parent, reduces a young child's fear in novel or 
challenging situations, thereby enabling her to explore with confidence 
and to manage stress, while at the same time, strengthening a young 
child's sense of competence and efficacy.\3\ Early attachments also set 
the stage for other relationships and play an important role in shaping 
the systems that underlie children's reactivity to stressful 
situations.\4\
    All infants need ample time with their parents at the very 
beginning of their lives to form these critical relationships. The 
better parents know their children, the more readily they will 
recognize even the most subtle cues that indicate what the children 
need to promote their healthy growth and development. For example, 
early on infants are learning to regulate their eating and sleeping 
patterns and their emotions. If parents can recognize and respond to 
their baby's cues, they will be able to soothe the baby, respond to his 
or her cues, and make the baby feel safe and secure in his or her new 
world. Trust and emotional security enable a baby to explore with 
confidence and communicate with others--critical characteristics that 
impact early learning and later school readiness.
    In addition to building secure and healthy early attachments, 
unhurried time at home with a newborn allows parents the time they need 
to facilitate breastfeeding and ensure that their children receive the 
immunizations necessary to lower infant mortality and reduce the 
occurrence and length of childhood illnesses. Paid leave also reduces 
economic anxiety by providing job security and consistent income during 
a time in which it is essential for parents to focus on their new 
families rather than worrying about how to make ends meet. Time at home 
also benefits employers by reducing staff turnover and the subsequent 
training and hiring costs associated with new staff.
                        family and medical leave
    The 1993 Family and Medical Leave Act allows employees to take up 
to 12 weeks of unpaid, job-protected leave to care for newborns, newly 
adopted and foster children, and seriously ill family members, 
including themselves. Of the more than 60 million Americans who have 
taken time off from work under the FMLA since it was enacted 15 years 
ago,\5\ 18 percent did so to take care of a new child.\6\ Although FMLA 
has had great success, far too many workers are still unable to take 
leave. More than 3 in 4 eligible employees (78 percent) reported that 
they could not afford to take the leave that they needed because it was 
unpaid.\7\ Furthermore, since the law only applies to employers with at 
least 50 employees, a full 40 percent of the workforce is currently not 
covered by the Federal law.\8\
    Recent surveys show that the vast majority of Americans support 
paid leave programs:

     Nearly nine in ten (89 percent) parents of young children 
and 84 percent of all adults support expanding disability or 
unemployment insurance to help families afford to take time off from 
work to care for a newborn, a newly adopted child, or a seriously ill 
family member.
     Nearly all working women (93 percent) report that paid 
sick days are an important benefit. In a list of 10 employment 
benefits, only health insurance was ranked higher than paid leave.

    In light of this overwhelming support, action should be taken at 
the State and Federal level to enact legislation to allow parents 
(biological, foster, or adoptive) on leave to collect unemployment 
insurance or State disability insurance to enable them to spend time 
with their infants in the first year of life.
          what are states doing to support paid family leave?
    A few States have existing paid family leave laws. For example, 
California has the country's most comprehensive paid family and medical 
leave insurance program. Over 13 million workers can receive partial 
wages (55-60 percent of wages) to take up to 6 weeks of leave a year to 
care for a newborn, newly adopted or foster child, or to care for a 
seriously ill family member, and up to 50 weeks of leave a year to 
recover from their own serious illness, including pregnancy- or birth-
related disability.\10\ According to a recent report by the National 
Partnership for Women and Families, significant developments and 
victories have been made in other States in 2006 State legislative 
sessions. Highlights include:

     In 2006, paid leave bills were introduced in at least 21 
States.
     In Arizona, Washington, and Wyoming, State employees can 
now donate accumulated annual leave and/or sick leave to other 
employees who need time off to care for family members.
     In Tennessee, legislation passed allowing State employees 
with children enrolled in schools to take off up to 1 day a month from 
work to participate in their children's school activities.
                               conclusion
    Paid family leave is an issue that States continue to grapple with 
as more mothers with very young children enter the workforce--
currently, 59 percent of mothers with children under the age of 3 
work.\11\ Each day an estimated 11.6 million children under the age of 
3 spend some or all of their day being cared for by someone other than 
their parents.\12\ Before heading back to the workplace, parents need 
time to bond with their babies and enable them to form the all-
important attachments that will help give them a good start in life.
    I urge the subcommittee to consider the very unique needs of our 
Nation's youngest families as you explore ways in which to improve the 
Family and Medical Leave Act.
    Thank you for your time and for your commitment to our Nation's 
infants, toddlers and their families.
                                endnotes
\1\ Shonkoff, Jack and Phillips, Deborah. 2000. From neurons to 
neighborhoods: The science of early childhood development. Washington, 
DC: National Academy Press.
\2\ Ibid.
\3\ Ibid
\4\ Ibid.
\5\ National Partnership for Women and Families. 2007. Family and 
Medical Leave Act. http://www.nationalpartnership.org/site/
PageServer?pagename=ourwork_
fmla_FamilyandMedicalLeave (accessed February 11, 2008).
\6\ U.S. Department of Labor. 2000. Balancing the needs of family and 
employers: Family and medical leave survey. Washington, DC.
\7\ Ibid.
\8\ Ibid.
\9\ National Partnership for Women and Families. 2007. Where families 
matter: State progress toward valuing America's families. http://
www.nationalpartnership.org/site/DocServer/
Final_2006_Round_Up.pdf?docID=2161 (accessed February 11, 2008).
\10\ Ibid.
\11\ U.S. Department of Labor Bureau of Labor Statistics. 2006. Women 
in the labor force: A databook. Table 5. http://www.bls.gov/cps/wlf-
table5-2006.pdf (accessed February 12, 2008).
\12\ U.S. Department of Education. 2006. National household education 
surveys program of 2005: Initial results of the 2005 NHES early 
childhood program participation survey. Table 1. http://nces.ed.gov/
pubsearch/pubsinfo.asp?pubid=2006075 (accessed February 11, 2008).
 Prepared Statement of Joe Solmonese, President, Human Rights Campaign
    Mr. Chairman and members of the committee, on behalf of the Human 
Rights Campaign (HRC), America's largest civil rights organization 
working to achieve gay, lesbian, bisexual and transgender (GLBT) 
equality and our over 700,000 members and supporters nationwide, I 
submit this statement in response to the Department of Labor's proposed 
rulemaking and in support of expansion of the Family and Medical Leave 
Act (FMLA) to cover all families, including those headed by same-sex 
couples.
    The FMLA has been a lifeline for thousands of families in times of 
crises. The protection afforded by the act has allowed workers to care 
for themselves and their loved ones without fear of losing their job 
and consequently, their income. The recent expansion of this act to 
include members of the armed services is a testament to the importance 
of ensuring all Americans have access to time off to care for their 
families. Unfortunately, same-sex couples and their children are not 
covered by the FMLA. The HRC believes that expanding the FMLA to ensure 
GLBT families are fully included is a necessary and important next step 
in the history of this landmark act.
    Given the success of the FMLA, the current Administration should 
seek ways to expand the law and to extend coverage to all workers and 
their families, including those led by same-sex couples. The HRC has 
always supported the act's goal of striking the right balance between 
the needs of employees and those of employers. We have grave concerns 
however, that provisions in the Department of Labor's Notice of 
Proposed Rulemaking (NPRM) published February 11, 2008 disrupt that 
balance. Specifically, we believe that the proposed regulations may 
place unnecessary limits on employees' ability to use FMLA leave in 
times of need.
            i. the fmla is successful and should be expanded
    The passage of the FMLA, which provides workers with up to 12 weeks 
of leave each year to care for certain close family members or to 
address serious personal health concerns, was a groundbreaking step 
forward for millions of Americans. However, FMLA coverage is still 
incomplete. Under current law, millions of GLBT Americans in committed, 
long-term relationships are unable to take leave to care for a same-sex 
partner and their children. GLBT workers experience the same levels of 
stress, lack of productivity, distraction and fear of job loss as do 
others when their domestic partners become ill, are hospitalized or 
cared for by others. It does not however, guarantee these employees the 
same leave opportunities to care for their loved ones.
    Some States and private employers have filled this gap in coverage 
by offering family medical leave for workers to care for a domestic 
partner. An expansion of the FMLA is needed in order to cover millions 
more of America's families.
    This story of a same-sex couple from Indiana highlights the 
disastrous consequences of this gap. Tina was fired from her job when 
she missed work to care for her partner, Danielle, during a serious 
illness. When Danielle fell unconscious, Tina rushed her to the 
hospital. Tina stayed by Danielle's side for 10 days, until she 
recovered enough to go home to their children. Because same-sex couples 
are currently excluded from FMLA protections, Tina's employer was not 
obligated to allow the 10 day leave necessary to assist her life 
partner. As a result, Tina lost her job.
    For millions of workers, the FMLA has been an unmitigated success. 
It has proven essential in achieving greater employee retention and 
reducing turnover.\1\ However, because gay and lesbian employees are 
not guaranteed up to 12 weeks of family or medical leave to care for a 
partner or partner's child without fear of losing their job, the FMLA 
does not fulfill its purpose of protecting working families.
---------------------------------------------------------------------------
    \1\ Westat, Balancing the Needs of Families and Employers: Family 
and Medical Leave Surveys Table Sec. 6.2.3, Table 6.5 (2001), http://
www.dol.gov/esa/whd/fmla/fmla/toc.htm.
---------------------------------------------------------------------------
    We strongly encourage expansion of the FMLA to cover all American 
families--straight, gay, lesbian, bisexual and transgender. Many State 
and local governments and private employers already include families 
headed by same-sex couples for purposes of family leave. They recognize 
that an inclusive workforce is a competitive workforce. These employers 
realize that not applying the FMLA protections to all workers greatly 
limits the act's intent to provide a stable and continuous workforce by 
helping employees retain their jobs when a family emergency strikes.
    The HRC Foundation tracks employers that provide FMLA-like benefits 
to employees with same-sex domestic partners. As of January 1, 2008, 
the HRC Foundation was aware of 328 major corporations extending FMLA 
benefits to include leave on behalf of a same-sex partner. Currently 13 
States offer some type of health benefits to domestic partners and 
seven States include unmarried partners in State family and medical 
leave acts.\2\ The experience of these governmental and private 
employers shows that extending FMLA eligibility benefits both employees 
and employers alike.
---------------------------------------------------------------------------
    \2\ The following States under their respective State FMLAs extend 
benefits that include same-sex couples: California and the District of 
Columbia extend benefits to registered domestic partners; Connecticut, 
New Jersey, and Vermont provide benefits to parties in a civil union; 
Hawaii provides benefits to reciprocal beneficiaries; and Oregon and 
Rhode Island provide benefits to family members which includes same-sex 
domestic partners; New Mexico provides benefits to same-sex spouses so 
long as they were married out-of-state in a State that recognizes 
marriage for same-sex couples.
---------------------------------------------------------------------------
    The HRC also supports efforts to expand FMLA coverage to include 
paid leave for all families. Far too few working Americans have a 
single day of paid sick leave--and low-wage workers are hit the 
hardest. Providing paid sick days is essential for working Americans 
and their families so that they have time for regular, preventive 
medical check-ups which reduce the number of lost work days. Expanding 
the FMLA to provide for paid leave would assist all of America's 
working families.
    Workers with same-sex partners and children need the ability to 
take paid time off to care for themselves and their families without 
losing a paycheck and compromising their economic stability. Due to the 
inherent inequity in access to Federal benefits for same-sex couples 
and their children, including the benefits provided by the Family 
Medical Leave Act (FMLA), using an employer's paid leave structure is 
often the only option when tending to the long-term illness of a 
partner or other family member. For those families whose employers do 
not provide paid leave, there are no options beyond missing work, as 
well as a paycheck, or losing a job entirely.
    Corporate America and State and local governments have recognized 
that one key to remaining competitive is to have an inclusive 
workforce. It is time for the Federal Government to follow the lead of 
these employers and extend sick leave benefits to families headed by 
same-sex couples.
   ii. the proposed changes to existing family and medical leave act 
                      regulations are problematic
    The Department of Labor's proposed regulations place a number of 
unnecessary roadblocks in the way of employees who desperately need 
FMLA leave. The Federal Government should help facilitate the leave 
process for employers and employees by adopting common sense rules to 
guide them. Particularly problematic are the proposed regulations that 
would eliminate the ``2-day'' rule in the case of unforeseeable leave, 
otherwise known as emergencies. Instead of having up to 2 days after 
the absence to call in, employees would be required to do so prior to 
the start of their shift, thereby negating the purpose for which the 
rule was initially created--to cover emergencies.
    The proposed regulations would also allow private settlements 
without any oversight from the Department or the courts, thereby 
opening the door for employees to be unfairly persuaded to forego their 
leave rights. Given the absence of Federal employment protections for 
the gay, lesbian, bisexual and transgender workers, this provision is 
of particular concern to HRC. Any regulation regarding private 
settlements should ensure employees have adequate safeguards against 
employers' abuse.
    Finally, the proposed regulations would require further release of 
employee medical records to employers along with the right to contact 
an employee's health care provider directly. Refusal on the part of the 
employee to allow this access may result in a loss of FMLA rights. 
While we agree employers should be provided with information regarding 
the needs of their employees, conditioning FMLA rights on the surrender 
of one's privacy forces workers to choose between time off to care for 
an illness and the confidentiality of their medical history. This 
wholesale release of medical information could be particularly damaging 
for HIV/AIDS positive individuals as well as some transgender 
individuals. These groups often face discrimination and harassment 
based on their medical information and may feel they have no choice but 
to forgo FMLA leave to keep their records private.
    The proposed changes to regulations could have widespread 
consequences and should be supported by scientifically accurate data. 
The HRC encourages the Department of Labor to conduct comprehensive 
data collection, including representative data from GLBT families. The 
anecdotal evidence and available data presented in the Notice of 
Proposed Rulemaking do not provide a true estimate of employees 
eligible for FMLA and FMLA usage. The inherent inaccuracy between 
employees ``eligible'' in one sense and not ``eligible'' in another 
cannot produce truly accurate results. Millions of American GLBT 
families are not covered by the current law. Should an illness befall 
their partner or partner's child, they are not eligible to receive FMLA 
leave to provide assistance in the same manner in which an employee in 
an opposite-sex marriage would be eligible. To assist in remedying this 
inherent inaccuracy, we suggest additional questions that reflect the 
lack of coverage for same-sex partners in order to determine the true 
number of employees that are ``eligible'' for FMLA leave.
                            iii. conclusion
    Mr. Chairman, the Human Rights Campaign strongly opposes any effort 
to roll back FMLA coverage and supports the expansion of the act to 
cover families headed by same-sex couples and to include paid leave. We 
applaud the recent expansion of the FMLA to cover members of our armed 
services. The recent expansion of the FMLA to cover service members is 
the first expansion of the act in its 15 years and demonstrates that 
there is real progress to be made. We urge the committee to maintain 
this momentum and to continue to expand the act to ensure all American 
families are covered by the important protections promised by the FMLA. 
Thank you.
                    Prepared Statement of MomsRising
    MomsRising is a fast-growing online grassroots organization that 
works to promote and advocate for family-friendly policies. The 
policies that form the core of MomsRising's agenda are spelled out the 
word MOTHER. ``M'' is for paid maternity and paternity leave; ``O'' is 
for open flexible work; ``T'' is for technology we choose and other 
afterschool programs; ``H'' is for healthcare; ``E'' is for excellent 
childcare; and ``R'' is for realistic and fair wages.
    Our membership is open to everyone who is a mom, and everyone who 
has a mom. Less than 2 years old, we are approaching 150,000 members 
across the United States, and adding new members at the rate of 500-
3,000 per week.
    Our rapid growth speaks to the fact that we have touched a nerve. 
Americans are struggling to balance work and family. They join 
MomsRising because we are pressing for laws that let workers fulfill 
their responsibilities at work without giving short shrift to their 
families. They join MomsRising in part because we support the Family & 
Medical Leave Act (FMLA), a 15-year-old law that is immensely popular 
and is used by thousands of workers each and every day.
    Like other Americans, MomsRising's members not only want Congress 
to defeat any efforts to weaken the FMLA--they want Congress to expand 
it. Today, three quarters of American mothers are in the labor force. 
Yet we have a support structure from the 1950s. We need to ensure that 
our policies catch up to the reality of America's families. That means 
protecting the FMLA and expanding it to cover more workers who need 
leave for more reasons. It also means providing paid leave, so that all 
workers can take time to care for family members or recover from 
serious illness.
    Right now, we are far behind most of the world in terms of family-
friendly policies. A study of 173 countries by Dr. Jody Heymann of 
Harvard and McGill Universities found that only Liberia, Papua New 
Guinea, Swaziland and the United States did not provide some form of 
paid leave for new mothers. We can and must do better.
    Our lack of family-friendly policies is terribly costly. It drags 
down mothers' wages. While women without children make 90 cents to 
every man's dollar, women with children make only 73 cents to a man's 
dollar and single mothers make only about 60 cents.
    Because of this, America's families are in trouble. A full quarter 
of families with children under age 6 live in poverty. It's appalling 
that having a baby is a top cause of ``poverty spells'' in this 
country--a time when a family's income dips below what it needs for 
basic living expenses like food and rent. That's only going to get 
worse as the economy struggles.
    When women aren't paid what they deserve, their families suffer. 
When children grow up in poverty, our economy suffers. That's why we 
believe that family-friendly workplace policies are so essential.
    When so many people in our country are having the same problems at 
the same time, we have a structural problem that needs to be addressed, 
not an epidemic of personal failings. It's time to take it seriously, 
adopt policies that make life better, and make America a more family-
friendly nation.
    Last year, MomsRising was instrumental in convincing lawmakers in 
Washington State to adopt paid family leave. We ask Congress to also 
take steps to build a more family-friendly country. We urge you to make 
paid leave--including family leave, sick leave, and maternity and 
paternity leave--available to all workers by expanding the FMLA, and by 
passing both the Healthy Families Act and the Balancing Act.
    Our members care deeply about this. They send tens of thousands of 
emails to Congress and State legislators each time we send out an e-
outreach. They have held hundreds of house parties and film screenings 
to increase support for these policies.
    We are passionate about building a family-friendly nation because 
we want to strengthen families, improve our economy, and build a better 
world for our kids.
    America is ready. We hope Congress is too. Please, take the next 
steps now. Thank you.
                                 ______
                                 
             American Civil Liberties Union (ACLU),
                                      Washington, DC 20005,
                                                 February 27, 2008.
Hon. Chris Dodd,
Chairman,
Hon. Lamar Alexander,
Ranking Member,
Subcommittee on Children and Families,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

RE: ACLU Supports the Family Medical Leave Act

    Dear Chairman Dodd and Ranking Member Alexander: On behalf of the 
American Civil Liberties Union (ACLU) and its more than half a million 
members and activists and 53 affiliates nationwide, we thank the 
subcommittee for its hearing this month on the Family and Medical Leave 
Act (FMLA) and for bringing new attention to the achievements of and 
continued need for the FMLA. We applaud, once again, congressional 
leadership that, 15 years ago, made the FMLA a reality. We are pleased 
that the 110th Congress will examine the role the FMLA has played to 
improve workers' rights and decrease gender discrimination in the 
workforce.
    As a result of the FMLA, eligible workers are entitled to 12 weeks 
of unpaid leave to care for their own serious health conditions or that 
of a parent or child and to take family leave in connection with the 
birth or adoption of the employee's child. The FMLA has allowed more 
than 50 million Americans to take protected leave and maintain their 
job security.
    Though simple and straightforward on its face, this Federal law 
struck a mighty blow against entrenched and historical discrimination 
against women in the workplace. The record revealed, at the time of the 
law's passage, that too many employers relied on invalid gender 
stereotypes when administering leave policies. Their assumption that 
women were naturally or better suited to respond to exigent family 
circumstances meant that women's employment opportunities were 
minimized and their role in the workplace marginalized. Passage of the 
FMLA attacked these outdated modes of thinking. It moved us ever closer 
to achieving equality of opportunity in employment by requiring gender-
neutral family leave benefits in workplaces across the country and by 
recognizing that both men and women must balance family 
responsibilities with work.
    As we celebrate the gains the FMLA has brought about, we must also 
take note of the work that remains and stand vigil against actions that 
would narrow the scope of the law. Today, nearly 40 percent of workers 
are ineligible for FMLA leave because of statutory exclusions for new 
employees, businesses with fewer than 50 employees and part-time 
employees. These exclusions should be re-examined because they ignore 
the needs and reality of many low-wage workers and undermine our 
efforts to promote workplace equality for women. Additionally, we are 
concerned about the Department of Labor's recent new regulations. For 
example, some of the proposed regulations impose additional 
requirements for workers who seek leave and allow employers direct 
access to the employee's health care providers.\1\ Access to family 
leave should not be made more difficult and conditioned on an invasion 
of workers' privacy. Upon initial review, we fear that is exactly what 
the new regulations will do.
---------------------------------------------------------------------------
    \1\ See 29 CFR part 825.302 -825.303 (employee notice requirements 
for foreseeable and unforeseeable FMLA leave); 29 CFR part 825.305-307 
(employer, rather than employer's medical professional, may clarify or 
authenticate medical information by contacting the employee's health 
care provider directly).
---------------------------------------------------------------------------
    The ACLU looks forward to working with the subcommittee to expand 
and strengthen the benefits conferred by the FMLA. Should you have any 
questions, please don't hesitate to call Vania Leveille at 202-715-0806 
or [email protected].
            Sincerely,
                                       Michael McLeod-Ball,
                              Chief Legislative and Policy Counsel.
                                            Vania Leveille,
                                               Legislative Counsel.
                                 ______
                                 
  Prepared Statement of Jason A. Straczewski, Director, Employment & 
          Labor Policy, National Association of Manufacturers
    I would like to thank Chairman Dodd, Ranking Member Alexander and 
the members of the subcommittee for holding such an important hearing 
and I appreciate the opportunity to provide this statement on behalf of 
the members of the National Association of Manufacturers (NAM).
    The NAM is the Nation's largest industrial trade association, 
representing small and large manufacturers in every industrial sector 
and in all 50 states, and employing millions of workers. Headquartered 
in Washington, DC the NAM has 10 additional offices across the country. 
Our mission is to enhance the competitiveness of manufacturers by 
shaping a legislative and regulatory environment conducive to U.S. 
economic growth and to increase understanding among policymakers, the 
media and the general public about the vital role of manufacturing to 
America's economic future and living standards.
    Because the NAM remains committed to protecting the interests of 
American manufacturers, particularly to ensure the survival of small 
and medium manufacturers in an intensely demanding globally competitive 
environment, the NAM respectfully submits this statement in an effort 
to increase the subcommittee's understanding of manufacturers' 
collective experience with the FMLA in day-to-day practical 
circumstances.
    The important and valuable benefit of the Family and Medical Leave 
Act (FMLA) is unquestioned. But in the 15 years since enactment, a law 
which seemed fairly straightforward has been hindered by confusing and 
conflicting regulations and guidance. The NAM supports legislative and/
or regulatory efforts to revise and improve how FMLA is administered so 
that this important employee benefit is protected. This statement will 
address the key concerns manufacturers have routinely identified:

     The definition of serious health condition is vague, 
making the FMLA difficult to understand for employees and unpredictable 
for employers to administer.
     Medical certification forms do not provide clear guidance 
on the duration and frequency of leave necessary; and,
     Unscheduled intermittent leave often results in fellow 
employees picking up the slack or employers unable to meet customer 
demand.

    According to the U.S. Department of Labor's (DOL) recent report, 
millions of employees have benefited from family and medical leave. 
However, 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 to employers. It was never intended to 
unfairly burden colleagues forced to cover the unpredictable absences 
of their co-workers. We can restore the balance intended by Congress 
between employers' needs for employees, and employees' need for time to 
attend to important family and medical issues. Employees will 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 comments that follow are based on and reflect the responses to 
a survey of Association members regarding their experience with the 
FMLA. Hundreds of members responded with anecdotes and specific data, 
representing over 900,000 employees. The Survey was conducted between 
January 2007 and February 9, 2007, and, thus, reflects the most current 
possible information. We believe the comments here are representative 
of the broadest possible spectrum of employer: large and small, with 
and without a union, in every state, without partisan concerns, but 
linked by common difficulties in administering federally-mandated leave 
in a manner that lives up to the goals of dignity and compassion of the 
FMLA without undermining the fairness built into the statute and the 
competitiveness of our Nation's businesses.
    It is no secret that the manufacturing sector in the United States 
has recently suffered a series of challenges, foreign and domestic. As 
a recent study conducted by the NAM demonstrated, external overhead 
costs from taxes, health and pension benefits, tort litigation, 
regulation and rising energy prices add approximately 31.7 percent to 
U.S. manufacturers' unit labor costs (nearly $6 per hour worked) 
relative to their major foreign competitors.\1\ This constitutes a 20 
percent increase in such costs in only 3 years. In today's market, 
every additional cost affects an entity's competitiveness and simply 
cannot be ignored. As NAM President John Engler recently wrote, in 
describing the threats that current market realities pose to the 
manufacturing sector:
---------------------------------------------------------------------------
    \1\ The study, The Escalating Cost Crisis, may be viewed in its 
entirety at www.nam.org.

        There are many challenges facing manufacturers in America. 
        Structural non-wage costs such as taxes and regulations are 
        more than 30 percent higher than for our major trading 
        partners. The underlying pressures that make it difficult to 
        manufacture in the United States should be a top priority for 
---------------------------------------------------------------------------
        policymakers.

    Indeed, manufactured goods make up more than 60 percent of U.S. 
exports, totaling over $70 billion a month. But the demands of the 
global market have transformed the modern workplace into a flexible but 
demanding environment, one in which ``just in time'' defines not only 
inventories and deliveries, but work schedules, as well. It is an 
environment in which reliable scheduling of personnel and materiel is 
vital to an integrated business structure.
    In such an environment, unscheduled absences and unenforceable 
attendance policies are not merely inconveniences. They are the 
``monkey wrenches'' that bring the whole process to a halt. In the 
``24/7'' environment of modern manufacturing, a night shift only makes 
sense when the day shift is fully staffed to take up and continue their 
efforts. Manufacturing and shipping schedules can be met only when 
staffing requirements can be predictably and reliably filled. But 
making sense of personnel requirements and scheduling needs has been 
made significantly more difficult by the current interpretations of the 
FMLA by the DOL.
    We would like to make one thing clear from the outset: NAM members 
and the manufacturing sector in general are and have been at the 
forefront of providing laudable wages and benefits to workers. In 2006, 
manufacturing wages and benefits averaged over $69,000, which is 
approximately 21 percent higher than in non-manufacturing jobs. In the 
history of American business, it is safe to say that the manufacturing 
sector invented employee benefits. Even today, when so many businesses 
have trimmed their benefits to only those mandated by law, the NAM 
survey indicates that nearly 30 percent of manufacturers offer paid 
maternity leave. Thus, the NAM strongly feels that with respect to the 
FMLA, Congress should not unnecessarily expand mandated leave. 
Furthermore, the NAM strongly supports the existing FMLA benefit 
Congress enacted and seeks to protect existing leave for workers. Our 
members already provide a great deal more leave than is mandated. What 
we are concerned with is the efficient and effective administration of 
the Federal leave law, an administration that yields predictability, 
that controls misuse, that eliminates fraud, and that preserves the 
enhanced benefits we offer for future generations of workers.
                             the challenges
    It is safe to say that the FMLA has achieved its principal goal: 
leave to care for oneself or one's family during health problems is 
available to and widely used by eligible employees. Yet there are a 
number of areas that continue to plague employers who are trying to 
provide the leave made available by law in a manner that is reasonable 
and cost-effective.
    As currently interpreted by DOL, the FMLA has become the single 
largest source of uncontrolled absences and, thus, the single largest 
source of all the costs those absences create; missed deadlines, late 
shipments, lost business, temporary help, and over-worked staff. 
Indeed, it is not too much to say that the FMLA has had the unintended 
consequence of creating an epidemic of absences and has profoundly 
undermined what had been America's ``secret weapon'' in global economic 
battles: the work ethic and productivity of the workforce. There are 
several aspects of the FMLA that we believe are in need of reform. But 
among our members there is agreement that three facets of the law work 
in combination to create the largest number of problems: the definition 
of ``serious health condition,'' the medical certification process and 
unscheduled intermittent leave.
    Although it may not be possible to identify which of these elements 
is the direct cause of the absent workforce, the combined result is a 
staggering loss of work-hours and an all-but-incalculable loss of 
capital assets. For one major auto parts manufacturer, applications for 
FMLA leave increased 150-fold in 10 years. In the year for which there 
is the most recent data, 20 percent of that employer's entire workforce 
applied for FMLA leave. Of this number, a troubling percentage was for 
intermittent leave for a supposedly ``chronic'' health condition. 
Indeed, for this company, the use of intermittent leave increased five 
times more quickly than that for regular FMLA leave.
    Our data indicate that the experience of this company is typical of 
manufacturers. for example, NAM members responding to the survey of 
their concerns with the FMLA reported that 65 percent of the requests 
received for intermittent leave were made either on the day of the 
leave, after the leave was taken, or without any notice. In most of 
those cases, the employees had a medical certification on file with the 
employer that authorized intermittent leave based on a chronic 
condition. However, as will be discussed in greater detail below, a 
statistically unsupportable number of the intermittent leaves were 
taken on Monday and/or Friday, giving rise to the unavoidable 
conclusion that misuse is at work, and costly misuse at that. For the 
auto parts manufacturer discussed above, each 1 percent increase in the 
absenteeism rate costs over $8 million annually. Indeed, the idea that 
because FMLA leave is unpaid it is ``cost-free,'' strikes NAM members 
as an idea that could only be thought up by those who have never met a 
payroll, those for whom a missed deadline never meant lost revenue, 
those who do not have to compete for business in today's challenging 
marketplace.\2\
---------------------------------------------------------------------------
    \2\ As stated in the Economic Analysis written by Darby Associates 
and submitted by the National Coalition to Protect Family Leave to the 
DOL Request for Information, Feb. 16, 2007, the real cost of the FMLA 
is reflected in ``higher labor costs, lower productivity, undesirable 
impacts on fellow workers, less effective organization, administration 
and personnel practices of affected firms, higher prices, and lower 
quality of service to patrons of the impacted companies.'' Economic 
Welfare Consequences of FMLA at 4.
---------------------------------------------------------------------------
                        serious health condition
    Many difficulties are created by the vague and confusing guidelines 
defining a ``serious condition.'' In fact, the problems that flow from 
this ambiguous definition rank among the most serious for those who 
must administer the FMLA, from the difficulty in tracking leave to the 
cost of replacement workers and lost business. NAM members fully concur 
with the conclusion that the loose and unclear definition of ``serious 
health condition'' is at the root of a great deal of the unpredictable 
nature of unscheduled leave. The Association just as strongly believes 
that another basic problem is that those responsible for identifying 
and certifying a ``serious health condition'' have no similar 
responsibility for the impact of their decisions and no regulatory 
requirement for being credible. Thus, most health care providers when 
faced with vague guidelines, a woefully inexact definition, and the 
absence of any enforcement, do not hesitate to comply with the requests 
of their patients and ``certify'' that the ailment at issue qualifies 
for mandated leave as a ``serious health condition.'' This practice has 
utterly undermined the congressional intent of providing leave for 
``serious'' medical situations and made statutory leave for even the 
most minor incidents commonplace.
    One automobile parts manufacturer in Ohio reports that FMLA medical 
certification forms have been received for leg cramps, warts and crying 
spells. The case law under the FMLA is replete with numerous similar 
instances. It is no surprise, then, that most NAM members believe there 
is no requirement for a serious medical condition at all; rather, the 
FMLA has, to quote one manufacturer, become ``a `blank check' to be 
absent.'' The breadth of this problem is difficult to overstate. For a 
major participant in the automotive industry, the lack of effective 
guidelines regarding the definition of a ``serious health condition'' 
is the reason for an exponential growth in the use of FMLA to cover 
tardy and ``leave early'' circumstances, in addition to a sharp 
increase in FMLA absences on Mondays and Fridays. This situation is 
much worse by the cost and difficulty of the FMLA mechanisms available 
to challenge the opinion of a health care provider. Costly additional 
medical opinions serve to worsen the problem rather than providing a 
meaningful and effective solution, by adding to both expense and delay. 
Stated bluntly, for manufacturers, with current needs and tight 
deadlines, being told in 3 weeks after the condition at issue today 
isn't really ``serious'' does not even address, let alone solve the 
problem.
    The NAM survey shows that the overwhelming majority of 
manufacturers provide paid sick leave to their employees. They did so 
before the FMLA was enacted and continue to do so. That is not the 
problem. For NAM members, the problem is that since leave has become a 
``right'' enforceable under Federal law, and since that leave has been 
made so available by loose and vague DOL interpretations, manufacturers 
have simply lost control of personnel scheduling. Any FMLA reform must 
recognize that leave should be there for those who need it, but no 
federally mandated leave should be open to misuse--that is simply 
unfair to employees that show up for the job reliably. The experience 
of our members indicates that the lack of a clear, comprehensible, 
``bright line'' definition of ``serious health condition'' has 
converted the FMLA from a statute mandating compassionate leave for 
serious medical problems to a national ``get out of work free'' law.
                         medical certification
    A significant majority of our members responding to the NAM survey 
have experienced recurring problems in administering the FMLA, and a 
significant number of difficulties relate to the certification process. 
Our members report that the certification process is cumbersome, slow, 
imprecise and unreliable. The failure of the medical certification 
process to provide prompt and accurate verification of an ailment that 
qualifies for FMLA leave has led to widespread misuse of FMLA leave. 
This has led, in turn, to the disintegration of time and attendance 
programs at manufacturers throughout the country.
    Vague documentation of the medical basis for leave and uncertainty 
about the validity of the leave were among the most frequently reported 
problems NAM members experienced. Association members reported that the 
certification forms and the process of obtaining the forms are vague, 
confusing, and all but impossible to enforce. This is a problem that 
affects everyone involved: employer, employee, and physician. NAM 
members repeatedly noted the difficulty in contacting the employee's 
medical provider to clarify the serious medical condition as a major 
administrative problem, often resulting in time-consuming and costly 
repeated requests to employees and health care providers. Indeed, for 
NAM members, the problems with certifications ranged from receiving 
late responses, to patently false responses, to no responses at all. 
When forms are returned, they often seemed designed to foster problems. 
One business in the Midwest reports receiving medical certifications 
that identify the time needed for medical leave as ``unknown'' or 
``indefinite.'' Attempts at clarifying these statements were 
unsuccessful and often rebuffed. Again, this experience is shared by 
many other of our members.
    An example of the dilemma the imprecise language of the regulations 
creates is the following:

     A manufacturing employee in New York was approved for 
intermittent FMLA leave due to complications his wife was experiencing 
during her pregnancy. Following his return to work, he took additional, 
unauthorized leave, and then stated he did not understand his leave had 
ended. About 1 month later, he took leave without it being approved, 
under his own assumption that it may meet FMLA criteria. During the 
course of this case, the company attempted to obtain additional 
information from the physician, due to an incomplete certification 
form, so that an informed decision could be made. This led to a major 
battle with the union regarding the definition of what is a 
``complete'' certification according to section 825.307, which was very 
time-consuming.

    The company discovered it was at a complete disadvantage due to its 
inability to ask questions, obtain additional information or provide 
additional information. As a result, the company was a three-time 
loser: unverified leave was taken; efforts to reach the physician were 
unavailing; and a bruising, inconclusive and costly conflict with the 
union ensued. Unfortunately, this dilemma is common because the cause 
of the problem lies in the ambiguous language of the regulation itself.
    When faced with flawed certifications, the employer is in a 
quandary. One option is to require a second opinion but that is time-
consuming, expensive and unnecessarily inconveniences the employee 
seeking leave. If there is a conflict of medical opinions, a third 
opinion may be required, further adding to costs, delays and 
inconvenience. In the meantime, in most cases, the employee has been 
granted the leave ``conditionally.'' But the fact is, if the medical 
reason for the leave ends up not being ``serious'' the time on the job 
has already been lost. If the employer has the temerity to deny the 
leave until the certification process is satisfied as contemplated by 
the law, it faces grievances (if unionized), DOL investigations and 
lawsuits. Thus, a law with a compassionate purpose and a clearly stated 
intent not to burden the employer has become a costly millstone around 
employers' necks.
    Based on its experience, a dessert manufacturer in Pennsylvania, 
who has had particular difficulty in obtaining prompt and accurate 
medical certification for spouse/dependent illnesses, suggests that a 
separate form be developed for this purpose. This employer learned that 
the employees had even less interest in pursuing completed 
certifications for family members than they exhibited for their own 
ailments. The difficulties faced by employers are mirrored by those of 
employees. Our members note that the cumbersome and often confusing 
medical certification forms are frequently resisted by health care 
providers. Employees report that their providers routinely stated that 
``we do not complete forms requested by employers'' and certain 
providers have refused to comply. Other employees report that some 
doctors charge an exorbitant fee (in one case, $50) for completion of 
the form.
    The NAM would strongly urge that any revisions of the certification 
form must simplify the process and make it clear to the employee and 
health care provider that the FMLA creates shared obligations, all of 
which must be fulfilled before the leave is awarded. The current 
regulatory scheme makes the burdens of the FMLA the sole responsibility 
of the employer. The ambiguities of the rules, the structural barriers 
to effective administration of those rules, the threat of DOL 
enforcement, lawsuits and grievances means that granting leave, even in 
the absence of the few procedural safeguards the law allows, is the 
norm. This must change.
    FMLA leave, except in emergencies, must be requested, scheduled and 
verifiably certified in advance. Further, an employer must be permitted 
to require a request for leave form that includes an unambiguous 
employee authorization for the employer--not necessarily a health care 
provider--to make inquiries of the employee's health care provider, as 
needed. Privacy concerns can be met as they are under the Health 
Insurance Portability and Accountability Act (HIPAA) and the Americans 
with Disabilities Act (ADA), and signed authorizations from affected 
employees should be a standard part of the FMLA leave process. 
Employers must not be the only party that must live up to its 
obligations or face sanctions. Finally, the requirement that only a 
health care provider may make inquiries on behalf of an employer 
regarding a medical certification is a needlessly burdensome procedure. 
Because most manufacturers employ no such personnel, this requirement 
has become an effective barrier to acquiring accurate and complete 
certifications.
    The certification process must also be given validity. FMLA leave 
may be a ``right'' but it is a contingent right, to be granted only 
when pre-existing conditions are met. The first condition must be a 
properly and completely executed medical certification form submitted 
prior to the leave. The responsibility for obtaining the certification 
form must be placed squarely on the employee who will be benefiting 
from the leave. Barriers that prevent employees from obtaining properly 
completed certifications in a timely manner should be removed. For 
example:

     The provision that allows employers to contact the 
employee's health care provider only through employer's health care 
provider for purposes of clarification and authentication should be 
deleted. Because most manufacturers do not employ or have no effective 
access to their own health care providers, this provision constitutes a 
complete barrier to the acquisition of necessary information. Even 
where such providers are available to employers, it results in 
unnecessary employer expenses and/or delays the certification process. 
This provision equally inconveniences employees, who may be asked to go 
back to their medical provider a second or third time until the form is 
completed. It is a needless barrier that the ADA, which usually deals 
with much more serious health problems than those confronted under the 
FMLA, has successfully avoided. The ADA model should be adopted for the 
FMLA;
     The model certification form seeks insufficient medical 
information, especially with respect to the nature and duration of the 
ailment. Further, it must be clear that leave is the result of a 
completed medical certification and that the certification is not the 
meaningless, after-the-fact document that current interpretations have 
allowed it to become. Absent some mechanism to require the prompt and 
complete cooperation of the health care provider and other regulatory 
changes, mere alterations of the certification form, however, do not 
promise to resolve the problems with the certification process;
     Allowing an employer to request medical recertification 
more frequently than every 30 days would be a material improvement and 
would assist employers in determining when leave is appropriate. This 
single change to 29 CFR Sec. 825.308(b) would have the effect of 
significantly reducing misuse of the FMLA and of returning the law to 
its original purpose; and,
     Permitting fitness-for-duty certifications in the case of 
a worker who is absent intermittently would yield immediate and 
important benefits. Many health care providers are unaware that their 
certifications are being used to validate absences unrelated to the 
ailment identified in the certification. Requiring the employee to 
visit his/her doctor for a fitness-for-duty certification before 
returning to work after FMLA leave would assist in furthering all 
treatment goals, would assure the employer that the employee may safely 
return to work, and ensure the safety of coworkers.
                     unscheduled intermittent leave
    The misuse of intermittent leave has reached epidemic proportions. 
On no other point have NAM members responded with such vehemence and 
detail. Intermittent leave is the point in the FMLA where all the 
unintended consequences of the law come together to cause an economic 
nightmare for manufacturers: unchallengeable ailments, unannounced 
absences, and unending burdens without remedy.
    The most troubling aspect of unscheduled intermittent leave is its 
use for ``chronic conditions.'' Under the current regulations, an 
employee may obtain a physician's certification stating that the 
employee has a chronic, recurring condition that may flare up, and that 
the employee will need intermittent leave as a result. As noted above, 
many of these certifications either do not identify the duration of the 
ailment or denominate it as ``indefinite'' or ``continuing.'' 
Nonetheless, once that certification has been made, the employer is 
compelled to provide the employee with intermittent leave whenever the 
condition recurs.
    Under current DOL and judicial interpretations of 29 CFR 
Sec. 825.308(b), the employer (i) may not require an employee to verify 
that the absences were caused by the chronic condition and (ii) may 
not, absent unusual circumstances, go back to the health care provider 
to learn if the original diagnosis/prognosis is still valid. The 
opportunity to miss work without threat of discipline or to follow an 
employer's normal attendance procedures has led to uncontrollable 
absences and incalculable loss. The problem is much more severe for 
manufacturers than for other employers.
    According to a 2006 DOL survey of FMLA use, of the 144 million 
employees covered, 23.8 million took leave (17 percent); about 6.6 
million, or 5 percent of total employees, took intermittent leave in 
the 18 months prior to the survey. That is 4.4 million or 3.3 percent 
annually.\3\ However, respondents to the NAM's survey have had a 
different experience. First, virtually all of the respondents indicated 
that most of their employees are eligible for FMLA leave. But they then 
reported that 25 percent of those eligible for FMLA leave had medical 
certifications already on file for a ``chronic'' illness that permitted 
unannounced, unscheduled intermittent leave. If only those workers used 
intermittent leave, manufacturers are experiencing a use of 
intermittent leave at nearly eight times the national average. For one 
major manufacturer, a staggering 60 percent of all FMLA leave taken in 
the last 9 months was for a period of 1 day or less. Nearly all of this 
leave was unscheduled, nearly all of it unannounced. Even leaving aside 
arguments that Congress never imagined it was passing a national sick 
leave law for ailments so minor that 1 day or less of recuperation is 
all that was required for recovery, there is other data to indicate 
that this pattern of use is actually an unfair misuse of the law.
---------------------------------------------------------------------------
    \3\ FMLA Survey, December 7, 2006, Department of Labor, at http://
www.dol.gov/esa/whd/fmla/fmla/foreword.htm.
---------------------------------------------------------------------------
    For example, the NAM survey reveals that when intermittent leave is 
taken for a whole day, over 60 percent of the absences were on Monday 
or Friday. When partial days were used for intermittent leave, 46 
percent of the absences were on Monday or Friday. We do not pose as 
health statisticians, but simple common sense dictates that real health 
conditions are not sensitive to the day of the week. The evidence 
demonstrates that the current FMLA regulations provide no opportunity 
for employers to administer and manage their most valuable resource: 
the workforce. Because it is vitally important that this problem be 
addressed, it is important that you know what is happening on the 
manufacturing floor:

     A manufacturing employee was approved for intermittent 
leave under FMLA for migraine headaches. He claimed he was using FMLA 
for ``therapy.'' After an unusual pattern of absences, the company took 
the time to observe his activities. His ``therapy'' proved to be deer 
hunting.
     An employee was certified for chronic hypertension. His 
ailment seemed limited to Mondays and Fridays. However, the employee 
admitted that during his absences, he was not seeking medical treatment 
but was rather receiving ``care'' at his girlfriend's house.
     A manufacturing employee on the night shift was approved 
for intermittent leave for migraine headaches. The company then learned 
that he also had a second job driving a school bus. The employee would 
often drive a bus early in the morning, even though he was not able to 
work for his entire shift the night before ``due to migraines.''
     An employee with a chronic illness missed over 30 days in 
a calendar year, almost all on Monday or Friday. On most days off, he 
was observed driving his ATV on his farm.
     A manufacturing employee was approved for intermittent 
leave under FMLA for migraine headaches. He has missed work for 12 of 
the last 15 Mondays.
     An employee has a medical certification on file for a 
chronic kidney stone problem. She misses blocks of days, either Monday 
and Tuesday, or Thursday and Friday, allegedly due to pains from the 
kidney stones. However, the employee admits she has received no 
treatment for the condition or the pain after her initial episode. In 
2005, 45 days of work were missed. Upset co-workers reported to 
management that her absences coincide with her partner's days off.

    In each instance, because of the presence of a medical 
certification for a chronic condition, the employer was prohibited from 
seeking and acquiring current, accurate validation that there was an 
ongoing ailment or treatment, that ailment was that for which the 
certification was submitted, or that the absence was related to the 
certified ailment. In sum, the current regulatory regime of the FMLA 
has devolved into a system of aiding and abetting misuse.
    It is apparent that the lack of clear rules requiring employees to 
provide advance notice of FMLA leave, particularly employers' inability 
to insist that routine call-in procedures be followed, has led to a 
flood of absences which have caused scheduling nightmares for 
manufacturers. Although the regulations state that employers may insist 
that employees follow ``usual and customary notice and procedural 
requirements'' for requesting time off (see 29 CFR Sec. 825.302(d)), 
this safeguard is illusory because the regulation further states that 
regardless of the company's customary procedures, employees cannot be 
denied FMLA leave if they otherwise give timely notice as provided in 
the regulations. Thus, employees with unscheduled intermittent leave 
routinely ignore mandatory shift call-in procedures (even if they are 
fully able to comply), wait 2 working days, as permitted by 29 CFR 
Sec. 825.303(a), and then report their absence as FMLA-qualifying. In 
the meantime, manufacturers must scramble to cover the shift. This puts 
unnecessary stress and burden not only on the employer, but also on co-
workers who must assume extra work at the last minute.
    Not only are employers' routine call-in procedures subordinated to 
the FMLA rule allowing notice ``within one or two working days of 
learning of the need for leave'' (29 CFR Sec. 825.303(a)), another 
provision of the FMLA regulations, 29 CFR Sec. 825.208(e)(1), expands 
the time period to allow an employee to notify the employer that his or 
her absence was FMLA-protected up to 2 days after returning to work, 
even if the employee could have followed normal call-in procedures or 
provided notice earlier. The NAM recommends that any changes include 
the following proposals:

     Employers should be permitted to consult directly with 
health care providers about an employee's medical certification form 
and the relationship of the absences to the ailment. Especially with 
respect to chronic ailments which contemplate use of intermittent leave 
in the future, a written request for FMLA leave should be required, 
which includes an employee authorization for the employer to consult 
with the certifying health care provider;
     Fitness-for-duty slips from the certifying physician 
should be permitted following every intermittent leave to assure that 
the leave was for the health-related purpose for which the leave was 
certified. Such a procedure would ensure that the employee/patient is 
receiving appropriate treatment while, at the same time, ensuring the 
safety of the employee and their fellow co-workers;
     29 CFR Sec. 825.302(d) should be modified to provide that 
employees must comply with the employer's normal and customary call-in 
procedures for reporting absences (particularly unscheduled 
intermittent absences) if they are able to do so and that such call-in 
procedures take priority over the 2-day notice rule allowed in 29 CFR 
Sec. 825.302 and .303. This is a reasonable modification that most 
employees are already familiar with when requesting other types of 
leave;
     No medical certification for a chronic ailment should be 
valid for more than 3 months and, once intermittent leave is used, the 
employer should be able to obtain confirmation from the health care 
provider that the certification remains valid;
     The ``after-the-fact'' notice rule contained in 29 CFR 
Sec. 825.208(e)(1) must be modified to clarify that it does not 
eliminate the employee's duty to provide advance notice as soon as 
practicable as set forth in 29 CFR Sec. 825.302 and .303; and,
     Most collective bargaining agreements and most company 
policies provide for a minimum of 4 hours' pay if a worker is called in 
to work or must leave work early, of the employers who completed the 
NAM survey, over 60 percent indicate that intermittent leave should be 
provided in a minimum period of 4 hours, regardless of an employer's 
time-keeping system. Some predictable level of administration must be 
allowed.
                               conclusion
    On February 11, 2008, the DOL issued a Notice of Proposed 
Rulemaking regarding the Family and Medical Leave Act. The NAM will be 
thoroughly reviewing this notice and providing additional comments. 
However, we would like to note that this recent action taken by the DOL 
is reasonable, balanced and will continue to allow employees to access 
the FMLA for the birth or adoption of a child or to take care of a 
family member with a serious illness, or seek treatment themselves when 
seriously ill.
    Manufacturers, far more than most other employers, must have the 
ability to make and rely on schedules, plans and deadlines. Perhaps the 
most crucial element of all is a predictable and reliable workforce. 
But the plain fact is that the FMLA, as currently interpreted and 
enforced, has eliminated that predictability. The NAM and its members, 
who provide and have provided more generous benefits than those 
mandated by law, are committed to protecting existing rights under the 
law. However, no system of benefits can survive if its cost outweighs 
its value. We are approaching that point with the FMLA. NAM members, 
indeed, all employers, and our Nation's economy cannot blindly continue 
to support this flawed, unfairly misused and confusing system.
    The NAM and its members are grateful for this opportunity to share 
its experiences, its concerns and its proposals regarding the FMLA with 
the members of the subcommittee. We look forward to the opportunity to 
work with Congress to improve this law so that it promotes 
predictability, fairness, eliminates misuse and preserves and protects 
the benefits manufacturers will continue to offer for future 
generations of workers.
                                 ______
                                 
   College and University Professional Association 
                     for Human Resources (CUPA-HR),
                                       Knoxville, TN 37932,
                                                 February 13, 2008.
Hon. Christopher J. Dodd, Chairman,
Hon. Lamar Alexander, Ranking Member,
Subcommittee on Children and Families,
U.S. Senate,
Washington, DC 20510.

    Dear Chairman Dodd and Ranking Member Alexander: On behalf of the 
College and University Professional Association for Human Resources 
(CUPA-HR), I write to thank you for holding the hearing today entitled 
Writing the Next Chapter of the Family and Medical Leave Act--Building 
on a 15-Year History of Support for Workers.
    CUPA-HR serves as the voice of human resources in higher education, 
representing more than 10,000 HR professionals at over 1,600 colleges 
and universities across the country, including 85 percent of all U.S. 
doctoral institutions, 70 percent of all master's institutions, more 
than half of all bachelor's institutions and 465 community colleges. 
Higher education employs 3.3 million workers nationwide, in every state 
in the country.
    CUPA-HR and its members understand the challenges today's employees 
face in balancing work and family demands and the importance of the 
Family and Medical Leave Act to America's workers and working families. 
Yet, while we fully support the protections offered by the FMLA, we 
feel it is important also to bring to your attention areas where the 
administration of the medical leave provisions of the FMLA have posed 
challenges for human resource professionals and undermined the intent 
of the act.
    Higher education human resource professionals consistently have 
reported problems with administering medical leave under the confusing 
and sometimes contradictory FMLA regulations and interpretations. In 
fact, 85.8 percent of CUPA-HR members that responded to a recent survey 
reported experiencing challenges in administering FMLA leave for the 
employee's own health condition. The survey results reveal many of the 
specific issues human resource professionals are having with the 
regulations. For example:

     55 percent reported problems with determining which injuries and 
illnesses qualify as serious health conditions;
     Over 55 percent said they experienced uncertainty about 
legitimacy of leave requests;
     Over 80 percent of respondents reported problems with tracking 
intermittent leave and close to 75 percent reported problems with 
notice of leave and unscheduled absences; and
     80.2 percent reported receiving vague information in a medical 
certification and almost half reported problems with authenticating and 
verifying information in leave certifications.

    More details about the survey, the challenges our members have 
encountered with the FMLA and possible solutions to those challenges 
are in the attached comments we filed with the Department of Labor. We 
urge you to work with the Department as it moves through its current 
rulemaking to resolve these challenges and provide clear guidance for 
employees andemployers on the new leave requirements for military, so 
we all may work together to explore new policy options to address the 
needs of the 21st century workforce.
            Very Truly Yours,
                                                Josh Ulman,
                       Chief Government Relations Officer, CUPA-HR.
                                 ______
                                 
   College and University Professional Association 
                     for Human Resources (CUPA-HR),
                                       Knoxville, TN 37919,
                                                 February 16, 2007.
Richard M. Brennan,
Senior Regulatory Officer,
Wage and Hour Division,
Employment Standards Administration,
U.S. Department of Labor,
Washington, DC 20210.

RE: Request for Information on the Family and Medical Leave Act of 1993

    Dear Mr. Brennan: I write on behalf of the College and University 
Professional Association for Human Resources (CUPA-HR) in response to 
the Request for Information (RFI) on the Family and Medical Leave Act 
(FMLA) published in the December 1, 2006, Federal Register. We 
appreciate the Department of Labor (DOL)'s interest in this issue and 
urge the DOL to improve the regulations in a manner that benefits both 
employers and employees and simplifies implementation of this important 
law.
    CUPA-HR serves as the voice of human resources in higher education, 
representing more than 9,600 human resource professionals at nearly 
1,600 colleges and universities across the country. Our members are 
responsible for administering the FMLA and ensuring their employers are 
in compliance with the act.
    While CUPA-HR and our members fully support the protections offered 
by the FMLA, some of the DOL's regulatory requirements make 
administration and compliance with the law unnecessarily difficult and 
overly burdensome, particularly with respect to administering FMLA 
leave for the employee's serious health condition. In fact, 85.8 
percent of the 360 CUPA-HR members that responded to a recent survey 
reported experiencing challenges in this area. (Survey attached as 
Exhibit A). The difficulties they have reported are similar to those 
discussed in the many Congressional hearings on the FMLA.
    Set forth below, we provide in our answers to the specific 
questions asked in the RFI more details on the challenges our members 
have encountered. We also recommend changes to the regulations that 
will both address some of the challenges and benefit employers and 
employees alike. CUPA-HR is a member of the National Coalition to 
Protect Family Leave (NCPFL) and fully supports the coalition's 
comments as well.
Eligible Employee
    The FMLA defines an ``eligible employee'' as one ``who has been 
employed . . . for at least 12 months by the employer with respect to 
whom leave is requested . . .'' 29 U.S.C.  2611.
    In section II. A. of the RFI, the Department asks, among other 
things, for input on whether and how to address the treatment of 
combining nonconsecutive periods of service for purposes of meeting the 
12 months required in 29 CFR Part 825.110(b).
    The current regulations state:

        The 12 months an employee must have been employed by the 
        employer need not be consecutive months. If an employee is 
        maintained on the payroll for any part of a week, including any 
        periods of paid or unpaid leave (sick, vacation) during which 
        other benefits or compensation are provided by the employer 
        (e.g., workers' compensation, group health plan benefits, 
        etc.), the week counts as a week of employment. For purposes of 
        determining whether intermittent/occasional/casual employment 
        qualifies as ``at least 12 months,'' 52 weeks is deemed to be 
        equal to 12 months.

    The DOL should amend 825.110(b) so that it bars combining of 
nonconsecutive periods of service to meet the statute's eligibility 
requirements, except in cases where the employee retains a nexus to the 
employer during the break in service, such as during an academic 
sabbatical, administrative leave or a break in service under the 
Uniformed Services Employment and Reemployment Rights Act. Nothing in 
the FMLA supports counting prior employment toward the 12-month minimum 
service requirements. To the contrary, the FMLA language requiring 
employment ``for at least 12 months'' suggests a requirement of 
continuous employment.
    Moreover, permitting prior employment to count toward the minimum 
service requirement makes tracking which employees are eligible for 
FMLA leave exponentially more difficult. The problem is illustrated by 
the recent decision in Rucker v. Lee Holding, No. 06-1633, 2006 U.S. 
App. LEXIS 31072 (4th Cir. December 18, 2006). In that case, the 
employee, Rucker, had voluntarily left his job as a car sales 
representative with Lee Holding in 1999. About 5 years later, the 
company rehired him. The court held that Rucker was eligible for FMLA 
leave even though he had only worked 7 months with the company because 
his prior service from 5 years ago counted toward the 12-month required 
tenure for FMLA eligibility.
    The Department also asks whether it should require employers to 
determine leave eligibility at the time the leave commences, as is 
suggested in 29 CFR Part 825.110(d), or when the leave is requested, as 
is suggested in 29 CFR Part 825.110(f). Eligibility for leave only 
attaches at the time leave commences. Consequently, the DOL can only 
require employers to make that determination at that time.
Definition of ``Serious Health Condition''
    The FMLA requires that covered employers provide eligible employees 
with leave for the employee's own serious health condition or to care 
for a family member with a serious health condition. The regulations 
establish various standards for determining what qualifies as a serious 
health condition in 29 CFR Part 825.114(a). In a later part of the same 
section--Part 825.114(c)--the language reads, ``unless complications 
arise, the common cold, the flu, ear aches, upset stomach, minor 
ulcers, headaches other than migraine, routine dental or orthodontia 
problems are examples of conditions that do not meet the definition of 
serious health condition . . .'' See 29 CFR Part 825.114(c).
    In section II. B of the RFI, the DOL asks if the regulatory tests 
set forth in 29 CFR Part 825.114(a) render inoperative the language in 
29 CFR Part 825.114(c). The DOL also asks if there is any way to 
maintain the standards in 29 CFR Part 825.114(a), while giving meaning 
to 29 CFR Part 825.114(c) and the Congressional intent that the 
protections of the FMLA not normally extend to common colds, ear aches, 
etc.
    In short, the standards set forth in 29 CFR Part 825.114 (a) do 
render the language on minor illnesses or injuries in 29 CFR Part 
825.114(c) meaningless and conflict with Congressional intent. Under 29 
CFR Part 825.114 (a), a serious health condition includes:

        ``a period of incapacity . . . of more than three consecutive 
        calendar days . . . that also involves (A) treatment two or 
        more times by a health care provider . . . or (B) treatment by 
        a health care provider on at least one occasion results in a 
        regimen of continuing treatment under the supervision of the 
        health care provider.''

    Many minor health conditions could include incapacity of more than 
3 calendar days and multiple doctors' visit (including follow-up visits 
after the incapacity) or continuing treatment, such as antibiotics or 
other prescription medications.
    The tension between 29 CFR Part 825.114 (a) and 29 CFR Part 
825.114(c) has made it difficult to ascertain which injuries and 
illnesses qualify for FMLA leave. In fact, more than 55 percent of the 
respondents to a CUPA-HR member survey that reported challenges 
identified problems with determining which injuries and illnesses 
qualify as serious health conditions. Exacerbating the problem are 
conflicting DOL opinion letters on the 29 CFR Part 825.114 (a) and 29 
CFR Part 825.114(c); one stating the common cold and other illnesses or 
injuries do not qualify as a serious health condition irrespective of 
29 CFR Part 825.114 (a), and a later letter withdrawing that opinion 
and stating the opposite.
    As noted in the comments provided by the NCPFL, the confusion over 
what qualifies as a serious health condition has led many HR 
professionals to err on the side of finding an illness or injury as 
FMLA qualifying. As result, the FMLA is more vulnerable to abuse and 
both employers and employees may questions the integrity of the act. 
Indeed, more than 55 percent of those who reported challenges with FMLA 
administration in the recent CUPA-HR survey said they had uncertainty 
about legitimacy of some leave requests.
    Several small changes to 29 CFR Part 825.114 (a) could eliminate 
this conflict. For example, the DOL could increase the number of 
consecutive days the individual must be incapacitated to 5 full 
workdays or 7 full calendar days. In addition, the DOL should clarify 
that for an illness or injury to qualify as a serious health condition, 
the individual must have multiple treatments during the period of 
incapacity, not at a later date. Finally, the provision allowing an 
illness or injury to qualify as a serious health condition if the 
individual is treated on one occasion and receives a regimen of 
continuing treatment should be removed from the regulatory definition.
Substitution of Paid Leave
    The FMLA allows an employee to elect or an employer to require the 
employee to substitute accrued paid sick, family, vacation or personal 
leave for any part of the 12-week FMLA leave entitlement (with some 
restrictions). The employer may impose the same limitations and 
restrictions on paid sick leave for FMLA purposes as it does for sick 
leave taken for reasons not covered by the FMLA. See 29 CFR Part 
825.207. For example, if the employer usually only permits sick leave 
for absences of a half day or more, then the employee may only 
substitute the paid sick leave for FMLA absences in excess of a half 
day--meaning shorter time periods would have to be unpaid. The 
regulations, however, do not permit employers to place any limitations 
on the substitution of paid vacation or personal leave accrued. See Id.
    The DOL asks in section II. D. of the RFI about the impact of 
prohibiting employers from applying their normal leave policies to the 
use of paid vacation and personal leave. Employers impose restrictions 
on the use of paid leave for a variety of reasons, including to ease 
associated administrative and paperwork burdens. Using the example 
above, many employers require employees to take paid leave in half-day 
increments for staffing, payroll administration and budget reasons. 
Also, by prohibiting restrictions on use of paid leave, the regulations 
force employers to treat employees using paid leave for FMLA purposes 
more favorably then those using accrued leave for other reasons. For 
example, an employer's policy may only permit vacation leave when the 
employee provides 2 weeks' notice, but an employee who wants to use the 
vacation leave for FMLA reasons need not provide the notice.
    In short, the DOL should allow employers to apply their normal 
leave policies to use of paid vacation and personal leave for FMLA 
purposes.
Attendance Policies
    The Department asks in section II. E if 29 CFR Part 825.215(c)(2) 
has impacted the employers' ability to provide perfect attendance 
awards and other incentives to encourage attendance. Reports from CUPA-
HR members indicate 825.215(c)(2) would in many cases render perfect 
attendance awards or similar incentives ineffective. More than 55 
percent of those reporting problems with FMLA administration in our 
membership survey said they experienced uncertainty about legitimacy of 
leave requests and close to 75 percent reported problems with notice 
and unscheduled absences from FMLA leave.
    While these problems are a result of deficiencies in other parts of 
the regulations, they exacerbate 825.215(c)(2)'s odd requirement that 
absences from work protected by the FMLA not count against an 
employee's eligibility for a perfect attendance award or similar 
incentives. Plainly, a perfect attendance award has little meaning if 
it must be provided to employees who may not truly qualify for FMLA 
leave and are frequently absent without notice.
Intermittent Leave
    The Department asks several questions in section II. F. of the RFI 
on the impact of unscheduled and intermittent FMLA leave.
    The FMLA permits employees to take leave on an intermittent basis 
or to work on a reduced schedule when necessary. The statute is silent, 
however, on whether an employer may require employees to take the leave 
in minimum increments of time. The DOL regulations at 29 CFR Part 
825.203 require employers to permit employees to take leave in the 
``shortest period of time the employer's payroll system uses to account 
for absences of leave, provided it is 1 hour or less.''
    Many employers have payroll systems capable of accounting in 
increments as small as 6 minutes. Tracking FMLA leave in such small 
increments is extremely burdensome--particularly with respect to exempt 
employees, whose time is not normally tracked. In addition, CUPA-HR 
members have had difficulties scheduling around intermittent leave 
because it is hard to find a replacement worker for small increments of 
time and the regulations do not require employees to provide any 
advance notice of the need for leave.
    The DOL Opinion Letter FMLA-101 (January 15, 1999) exacerbates this 
problem by stating that an employer must accept notice of need for 
leave up to 2 days following the absence.
    These problems are evidenced by the overwhelming majority of 
respondents to our membership survey that reported problems with FMLA 
administration. More than 80 percent of respondents reported problems 
with tracking intermittent leave and close to 75 percent reported 
problems with notice of leave and unscheduled absences.
    The Department could eliminate many of these problems if it allowed 
employers to require employees to take FMLA leave in a minimum of half-
day increments. In addition, the DOL should change the regulation so 
that employers can require employees to provide a week's notice of the 
need for leave, except in emergency situations or where the employee 
can show it was impossible to do so.
Light Duty
    The DOL asks in section II. G. of the RFI if ``light duty'' work 
should count against the employee's FMLA leave entitlement and 
reinstatement rights. As we understand it, DOL views light duty 
assignment as including positions with essential job functions 
different than those normally performed by the employee.
    The current regulations allow ``an employee's voluntary and 
uncoerced acceptance . . . of a `light duty' assignment while 
recovering from a serious health condition . . . In such a circumstance 
the employee's right to restoration to the same or an equivalent 
position is available until 12 weeks have passed within the 12-month 
period, including all FMLA leave taken and the period of `light duty.' 
'' See 29 CFR Part 825.220(d).
    Since the employee receives all the protections of the FMLA while 
on light duty and the assignment is voluntary, then the time spent 
performing light duty should count against the employee's FMLA leave 
entitlement.
    The DOL also should permit mandatory light duty assignments that 
are consistent with the employee's medical restrictions. In many cases, 
light duty may be a better alternative than placing the employee on 
leave, as it allows the employer greater flexibility in meeting its 
staffing needs. Such a change also would better rationalize the FMLA 
with the accommodation provisions of the Americans with Disabilities 
Act and the light duty provisions of many workers' compensation laws. 
The DOL could set parameters to ensure that the mandatory light duty is 
consistent with the intent of the FMLA, such as barring the time 
performing mandatory light duty from counting toward the employee's 
leave entitlement.
Essential Functions
    To qualify for FMLA under the current regulations, the illness or 
injury must prevent the employee from performing any one of the 
essential functions of the job. See 29 CFR Part 825.115. In section II. 
H of the RFI, the DOL asks for comments on the ``implications of 
permitting an employer to modify an employee's existing job duties to 
meet any limitations caused by the employee's serious health condition 
as specified by a health care provider, while maintaining the 
employee's same job, pay, and benefits.'' Doing so would allow 
employers greater flexibility to meet staffing needs, while also 
providing the employee with protections. It also would better 
rationalize the FMLA with accommodation provisions of the Americans 
with Disabilities Act and the light duty provisions of workers' 
compensation laws. In a similar vein, and as mentioned above, the DOL 
also should allow mandatory light duty assignments.
Waiver of Rights
    Section 29 CFR Part 825.220(d) of the current regulations provides 
that ``[e]mployees cannot waive, nor may employers induce employees to 
waive, their rights under FMLA.'' In section II. I. of the RFI, the DOL 
notes that some courts have interpreted the language in 29 CFR Part 
825.220(d) to prohibit settlements of past FMLA claims as well as 
prospective waivers. The case cited by the DOL, Taylor v. Progress 
Energy, 415 F.3d 364 (4th Cir. 2005), vacated and rehearing granted 
(June 14, 2006), held that the DOL or a court needed to approve any 
waiver of FMLA rights, including a settlement of past claims. As noted 
in the citation, the 4th Circuit vacated the Taylor decision and 
granted a request for rehearing.
    The Department asks in the RFI ``whether a limitation should be 
placed on the ability of employees to settle past FMLA claims.'' The 
DOL should not do so as it would discourage settlements of formal and 
informal FMLA claims and employers from offering a global release of 
claims in connection with a severance or settlement agreement or as 
part of a reduction-in-force program. A better course of action would 
be to revise the regulations so they explicitly allow an employee to 
settle any prior FMLA claims as is permitted under the Americans with 
Disabilities Act and similar laws.
FMLA Leave Determinations/Medical Certifications
    The Department asks in section II. K. of the RFI if 29 CFR Part 
825.307's restrictions on contact with the employee's health care 
provider result in unnecessary expenses for employers and/or delay the 
certification process.
    Under the current regulations, it is extremely difficult for an 
employer to clarify and authenticate a medical certification. The 
employer must first provide the employee with the opportunity to cure 
any deficiencies in the certification. See 29 CFR Part 825.305(d). If 
the employee fails to do so, the employer may have its health care 
provider contact the employee's health care provider if the employee 
consents.
    These restrictions are purely a product of the regulation. See 26 
U.S.C.   2613. While the FMLA itself limits the type of information an 
employer can require as part of the certification process, it imposes 
no limitation on inquiries related to that information.
    Interestingly, the other Federal statute under which employers are 
often required to provide employees with leave for medical conditions, 
the Americans with Disabilities Act (ADA), permits employers to 
communicate directly with the employee's health care provider. The FMLA 
restrictions particularly are problematic when employers face a request 
from an employee that triggers obligations under both the FMLA and ADA, 
given that the latter requires the employer to engage in interactive 
processes to accommodate the employee.
    CUPA-HR members that reported challenges administering the FMLA 
have had significant problems with medical certification, with 80.2 
percent reporting receiving vague information in a medical 
certification and almost half reporting problems with authenticating 
and verifying information in leave certifications.
    The DOL should revise the regulations so that employers may 
directly contact the employee's health care provider as long as the 
employer's inquiry is limited to the certification requirements set 
forth in the statute. This will make the certification process far less 
burdensome, and reconcile the FMLA process with that of the ADA.
Conclusion
    CUPA-HR appreciates the Department's interest in improving the FMLA 
and the opportunity to submit these comments. We urge the DOL to 
proceed with changes to the regulations we have detailed above.
            Very Truly Yours,
                                           Joshua A. Ulman,
                                Chief Government Relations Officer,
                    College and University Professional Association
                                               for Human Resources.
                  exhibit a--survey of cupa-hr members
    Have you or has your organization experienced any challenges in 
administering leave under the Family and Medical Leave Act for an 
employee's serious health condition?


------------------------------------------------------------------------
                                                                Response
                                                                  Total
------------------------------------------------------------------------
Yes...........................................................       309
No (Please skip Question 2 and click the Submit button at the         51
 bottom of the page)..........................................
------------------------------------------------------------------------
    Total Respondents.........................................       360
    (skipped this question)...................................         0
------------------------------------------------------------------------

    If you answered yes to Question 1 please indicate the areas below 
in which you or your organization has experienced challenges. (Check 
all that apply.)


------------------------------------------------------------------------
                                                                Response
                                                                  Total
------------------------------------------------------------------------
Determining if an injury or illness qualifies as a serious           172
 health condition.............................................
Receiving vague information in a medical leave certification..       247
Authentication and verifying information in a medical leave          138
 certification................................................
Uncertainty about the legitimacy of leave requests............       170
Tracking intermittent leave...................................       253
Problems with notice of leave and unscheduled absences........       229
Scheduling leave requests.....................................        76
------------------------------------------------------------------------
    Total Respondents.........................................       308
    (skipped this question)...................................        52
------------------------------------------------------------------------

                                 ______
                                 
                                                September 24, 2008.
Ms. Victoria Lipnic,
Assistant Secretary of Labor for Employment Standards,
Department of Labor,
200 Constitution Avenue, NW,
Washington, DC 20210.

    Dear Ms. Lipnic: Thank you for your testimony before the 
Subcommittee on Children and Families on February 14. I regret that, 
due to the constraints of time, the committee members were not able to 
fully explore your views about many of the important issues surrounding 
the Family and Medical Leave Act.
    As discussed at the hearing, several Senators had additional 
questions that they would like to ask you. These questions are 
enclosed, and unfortunately did not reach you when we initially sent 
them after the hearing. We would appreciate receiving your responses as 
promptly as possible, in light of the time-sensitive issues involved.
    If you have any questions, do not hesitate to contact Averi Pakulis 
at 202-224-2823.
            Sincerely,
                                       Christopher J. Dodd.
                                 ______
                                 
            Questions of Senator Kennedy for Victoria Lipnic
                             data gathering
    Question 1. The last comprehensive data collection on the FMLA by 
the Department of Labor was conducted in 2000. In a February 16, 2007 
letter to Secretary Chao responding to the Department's Request for 
Information, several members of Congress noted the lack of recent data 
collection about the numbers of employees taking FMLA leave and the 
types of leave taken. We urged the Department to gather additional 
information, including a comprehensive study similar to the 2000 
analysis, before making any regulatory changes. Did the Department 
consider conducting another comprehensive study to gather objective 
data about how the FMLA is currently working before changing the 
current regulations? Why did the Department decide against this 
approach? Does the Department have any plans to gather additional 
objective data about the law's operation in the future?
    Question 2. In support of its proposed changes to the notice 
requirements for workers seeking to take unscheduled leave, the 
Department relies on surveys submitted by private entities in response 
to the Request for Information. Does the Department have any knowledge 
of the methodological validity of these surveys? Shouldn't the 
Department gather its own survey data before changing the regulations?
    Question 3. Does the Department rely on anything other than 
anecdotal evidence from employers to support allegations that 
unscheduled intermittent leave is abused?
    Question 4. The questions in the Department's Request for 
Information were largely focused on the problems encountered by 
employers in administering the FMLA. Has the Department gathered any 
comprehensive data on the problems faced by workers who take leave or 
the consequences experience by workers upon their return from FMLA 
leave?
                          the new regulations
    Question 5. Under the proposed regulations, there are stricter 
limits on when a worker can substitute accrued paid time off for unpaid 
FMLA leave. When a worker who has already earned paid time off faces a 
health emergency (and, due to the unplanned nature of the crisis, 
cannot utilize the employer's usual and customary notice procedures to 
request paid time off) the worker can be forced to take leave without 
pay rather than using the paid time he or she has already earned. What 
is the reason for this change? Are employers more inconvenienced by the 
use of unplanned paid leave than the use of unplanned unpaid leave? Are 
there greater administrative difficulties involved?
    Question 6. The proposed regulations change the definition of a 
chronic serious health condition to require two or more visits to a 
health care provider annually. Given that the Department has recognized 
that self-treatment is appropriate for chronic serious health 
conditions, do you anticipate that this change will place increased 
financial burdens on workers whose conditions can be managed by self-
treatment? Will these workers be compelled to use FMLA time for 
unnecessary absences from work? Do you anticipate increased burdens on 
health care providers whose time and resources will be occupied with 
extra appointments?
    Question 7. The proposed regulations also clarify that a serious 
health condition requiring continuing treatment requires incapacity for 
three or more days and two or more treatments within a 30-day period. 
Why do you believe that period of a worker's incapacity and the timing 
of visits to a health care provider must be within a defined time 
period? Doesn't this change unnecessarily narrow the definition of 
serious health condition?
    Question 8. In the Request for Information, comments from employers 
suggested that more frequent certification was needed in response to 
``gaming or manipulation'' of intermittent/reduced work schedule 
leaves. The current regulations allow employers to request 
recertification whenever the employer has information that casts doubt 
on the continuing validity of a certification. This seems to provide an 
adequate protection for employers seeking to pursue potential abuses of 
the law. Why did the Department decide that more frequent certification 
at the employer's discretion was necessary?
    Question 9. The new regulations allow employers to directly contact 
a worker's medical providers if the worker has signed a HIPAA 
authorization. Since an incomplete medical certification results in a 
denial of FMLA leave, won't workers feel compelled to sign medical 
authorizations to increase the likelihood that they will be granted 
FMLA leave? Doesn't this new rule create a risk that medical 
authorizations will become a condition of employment?
    Question 10. Under the new rule, employers who contact medical 
providers directly are ostensibly limited to obtaining information 
needed to certify eligibility for leave, and/or information necessary 
to ``clarify '' a worker's request for leave. How can compliance with 
these limits be monitored and enforced?
    Question 11. Under the new regulations an employer is entitled to 
fitness-for-duty certifications every 30 days if an employee has used 
intermittent leave and reasonable safety concerns exist. What 
limitations are placed on an employer's discretion to determine that 
``reasonable safety concerns'' exist? Are employers required to give 
advance notice to workers before they take leave informing them that a 
fitness-for-duty certification will be required upon return to work? 
Must employers have a uniformly-applied policy regarding specific 
positions and health conditions before requiring a fitness-for duty-
certification?
    Question 12. You testified that many workers do not fully 
understand their FMLA rights or the procedures they must use when 
seeking FMLA leave. How do the new regulations address this problem? Do 
they require any verbal explanation to workers about their rights, or 
only written notification?
    Question 13. The FMLA was intended to establish a minimum labor 
standard, mandating a statutory floor of 12 weeks of unpaid leave that 
all covered employers must provide. The 1993 Senate Report on the FMLA 
noted that the act was drafted with other labor standards laws, such as 
the Fair Labor Standards Act, in mind. In the preamble to the current 
regulations, the Department of Labor analogized the FMLA's enforcement 
scheme to that of the FLSA and concluded that ``prohibitions against 
employees waiving their rights and employers inducing employees to 
waive their rights constitute sound public policy under the FMLA.'' The 
proposed rules now explicitly state that workers may retroactively 
waive their FMLA rights, while the FLSA still prohibits such 
retroactive waiver. What factors contributed to the change in the 
Department's views on waiver?
    Question 14. In several places the proposed regulations create 
obligations for the employee but it is unclear how it will be 
determined if the employee has met her burden and what the consequences 
are if that burden is not met. For example:

         Proposed 29 U.S.C. Sec. 825.203 requires that an 
        employee make a ``reasonable effort'' (as opposed to an 
        ``attempt'') to schedule leave so as not to disrupt the 
        employer's operations.
         Proposed 29 U.S.C. Sec. 825.302(d) requires that an 
        employee follow an employer's rules for notification of an 
        absence ``absent unusual circumstances.''
         Proposed 29 U.S.C. Sec. 825.302(a) requires that an 
        employee respond to an employer's inquiry regarding why notice 
        was not given sooner.

    Please explain how it will be determined if an employee has met the 
burden created by the new regulations, who will make this 
determination, what sanction the employee faces if she does not meet 
the burden, and what recourse the employee has if she feels she has met 
the burden and the employer disagrees.
    Question 15. Under the proposed regulations, what are the 
employer's responsibilities if the employer finds the medical 
certification to be ``incomplete'' and how do those differ from when an 
employer finds a medical certification to be ``insufficient.''
    Question 16. Under the proposed regulations, are there any limits 
to who at the employer can make the contact with the employee's health 
care professional and have access to the employee's medical 
certification information? Can the contact be made by the employee's 
direct supervisor?
    Question 17. Under the proposed new fitness for duty requirement 
for workers taking intermittent leave, how is ``reasonable safety 
concerns'' defined?
    Question 18. Under the proposed new medical recertification 
requirement, (825.308(a)) from what point is the 6 months measured? 
From the date of the original certificate or from the last 
recertification?
    Question 19. In selecting 5 years for proposed 825.110(b)(1) did 
the Department conduct analysis regarding how many employees will be 
denied FMLA leave because of this requirement and whether this 
requirement will fall more heavily on women? If such analysis was 
conducted, how was it done and what were the findings?
                         military family leave
    Question 20. The new military FMLA law passed by Congress provides 
up to 26 weeks of leave in a 12-month period for family members to care 
for injured servicemen and women. It also allows workers to take leave 
due to a ``qualified exigency'' that arises when a family member has 
been called to active duty. This law did not alter the FMLA's 
definition of ``eligible employee,'' which limits FMLA leave to workers 
who have been employed by their employers for 12 months and 1,250 hours 
in the prior 12-month period. As a result, the FMLA may not protect 
many family members who seek to care for injured service members or who 
experience ``qualified exigencies'' associated with a family member's 
military service.
    Last year, the President proposed military FMLA legislation to 
implement the Dole-Shalala report's recommendations. This legislation 
included a broader definition of ``employee'' in the context of workers 
taking family leave to care for an injured service member, allowing 
anyone ``employed by an employer as of the date of the service member's 
diagnosis of injury and still employed as of the date leave is 
requested'' to be eligible for FMLA leave.
    Do you agree that adopting this broader definition of ``eligible 
employee'' would make a tremendous difference in allowing family 
members to care for an injured service member?
    The Department estimates that among the 94.4 million employees who 
work for FMLA-covered employers, 18.4 million or 19.5 percent are not 
``eligible employees'' because they do not meet the service 
requirements of the statute. Has the Department estimated what portion 
of Americans who would otherwise be eligible for 26 weeks of leave to 
care for injured servicemembers will not be ``eligible employees'' 
because they have not worked for the requisite amount of time? Isn't it 
possible that an even higher proportion of this population may be 
excluded because their families must frequently relocate to meet 
military obligations? What does the Department propose to do to address 
this issue?

    [Editor's Note: Responses were not available at time of print.]
             Questions of Senator Dodd for Victoria Lipnic
    Question 1. How do we collect more data about why people are using 
FMLA leave without being too intrusive? What are the privacy concerns 
that need to be addressed?
    Question 2. What could the DOL be doing to raise awareness of 
employees' rights and employer and employee responsibilities under the 
FMLA? Beyond handing employees a packet at orientation and posting a 
sign, what type of comprehensive and accessible education program could 
employers create?
    Question 3. How can we get data about what happens to employees 
when they return from FMLA leave? What can we do to solve problems of 
backlash against employees for taking leave?
    Question 4. How can the paradigm be shifted so that intermittent 
leave is easier for employers and accessible when employees need it? 
What are the best steps to address this issue, which appears to cause 
the most concern among employers?

    [Editor's Note: Responses were not available at time of print.]

    [Whereupon, at 4:47 p.m., the hearing was adjourned.]

                                   

      
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