[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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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).
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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:
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\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\
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\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\
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\8\ Id. at 2.
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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\
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\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.
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\10\ DOL 2000 Report at 7-5 and A-2-68 Table A2-7.5.
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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\
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\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\
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\12\ Id. at 159.
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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\
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\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.
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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.
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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).
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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.
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\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.
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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.
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\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.
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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.
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\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).
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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:
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\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
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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\
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\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.
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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.
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\3\ FMLA Survey, December 7, 2006, Department of Labor, at http://
www.dol.gov/esa/whd/fmla/fmla/foreword.htm.
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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.]