[Congressional Record Volume 144, Number 50 (Wednesday, April 29, 1998)]
[Extensions of Remarks]
[Pages E710-E711]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               FAMILY AND MEDICAL LEAVE CLARIFICATION ACT

                                 ______
                                 

                         HON. HARRIS W. FAWELL

                              of illinois

                    in the house of representatives

                       Wednesday, April 29, 1998

  Mr. FAWELL. Mr. Speaker, I rise today to introduce a bill which would 
make reasonable, and much needed, changes to the Family and Medical 
Leave Act of 1993. The Family and Medical Leave Clarification Act will 
help the FMLA be implemented and enforced in a manner Congress 
originally intended when it passed the Act in 1993.
  I do not think anyone would dispute that the FMLA has done some good 
for those with serious family and medical crises. However, some of the 
troublesome results are difficult to ignore. The fact of the matter is 
there is compelling evidence of problems with the implementation and 
enforcement of the FMLA--problems which effect both employers and 
employees. The FMLA is still a relatively young law. In fact, the final 
rule implementing the Act was not published until 1995. As with any new 
law, there are some growing pains that need to be sorted out.
  As became evident during an extensive hearing last year in the 
Committee on Education and the Workforce, there is evidence of myriad 
problems in the workplace caused by the FMLA's intermittent leave 
provisions, of additional burdens from overly broad and confusing 
regulations of the FMLA--not the least of which is the Department of 
Labor's ever-expanding definition of ``serious health condition,` of 
inequities stemming from employers with generous leave policies being 
in effect penalized under the FMLA for having those policies, and of 
often incomplete FMLA medical certifications filed under the Act.
  Mr. Speaker, the FMLA created a Commission on Leave, which was 
charged with reporting the FMLA's impact. Upon release of the 
Commission's report in April 1996, we were told that all was well with 
the FMLA. But contrary to these assertions, the report was not a 
complete picture. In fact, the Family and Medical Leave Act Commission 
admitted its report was only an ``initial assessment.'' Its 2-year 
study began in November of 1993, just three months after the Act even 
applied to most employers and more than a year before the release of 
final FMLA regulations in January of 1995. Simply put, the Commission's 
report was based on old and incomplete data, looked at long before 
employers or employees could have been fully aware of the FMLA's many 
requirements and responsibilities.
  Mr. Speaker, the first area the FMLA Clarification Act addresses is 
the Department of Labor's overly broad interpretation of the term 
``serious health condition.'' In passing the FMLA, Congress stated that 
the term ``serious health condition'' was not intended to cover short-
term conditions for which treatment and recovery were very brief, 
recognizing specifically in Committee report language that ``it is 
expected that such conditions will fall within the most modest sick 
leave policies.''
  Despite Congressional intent, the Department of Labor's current 
regulations are extremely expansive, defining the term ``serious health 
condition'' as including, among other things, any absence of more than 
three days in which the employees sees any health care provider and 
receives any type of continuing treatment (including a second doctor's 
visit, or a prescription, or a referral to a physical therapist). Such 
a broad definition potentially mandates FMLA leave where an employee 
sees a health care provider once, receives a prescription drug, and is 
instructed to call the health care provider back if the symptoms do not 
improve.
  Most of the leave taken under the FMLA has been for employee's own 
illnesses most of which were previously covered under sick leave 
policies. The FMLA has become a national sick leave program--contrary 
to the strong assertions of the bill's original supporters. 
Furthermore, the Department of Labor has been inconsistent and vague in 
its opinion letters, leaving employers guessing as to what the DOL and 
the Courts will deem to be ``serious.''
  The FMLA Clarification Act reflects Congress' original intent for the 
meaning of the term ``serious health condition.'' by taking word-for-
word from the Democrats' Committee report, and adding to the statute, 
the then-Majority's explanation of what types of conditions it intended 
the Act to cover. It also repeals the DOL's current regulations on the 
issue and directs the agency to go back to the drawing board and issue 
regulations consistent with the new definition.
  My bill also minimizes tracking and administrative burdens while 
maintaining the original intent of the law, by permitting employers to 
require employees to take ``intermittent` leave--FMLA leave taken in 
separate blocks of time due to a single qualifying reason--in 
increments of up to one-half of a work day.
  Congress drafted the FMLA to allow employees to take leave in less 
than full-day increments. The intent was to address situations when an 
employee may need to take leave for intermittent treatments, e.g., for 
chemotherapy or radiation treatments, or other medical appointments. 
Granting leave for these conditions has not been a significant problem. 
However, the regulations provide that an employer ``may limit leave 
increments to the shortest period of time that the employer's payroll 
system uses to account for absences or use of leave, provided it is one 
hour or less.'' 825.203(d). Since some employers track in increments of 
as small as six or eight minutes, the regulations have resulted in a 
host of problems related to tracking the leave and in maintaining 
attendance control policies. In many situations, it is difficult to 
know when the employee will be at work, and in many positions, an 
employee who has frequent, unpredictable absences can play havoc with 
the productivity and scheduling of an entire department when employers 
do not know if certain employees will be at work. Allowing an employer 
to require an employee to take intermittent leave in increments

[[Page E711]]

of up to one-half of a work day would ease the burden significantly for 
employers, both in terms of necessary paperwork and with respect to 
being able to cover efficiently for absent employees.
  Where the employer does not exercise its right to require the 
employee to substitute other employer-provided leave under the FMLA, 
the FMLA Clarification Act shifts to the employee the need to request 
leave be designated as FMLA leave, and requires the employee to provide 
written application within five working days of providing notice to the 
employer for foreseeable leave, and within a time period extended as 
necessary for unforeseeable leave, if the employee is physically or 
mentally incapable of providing notice or submitting the application.
  Requiring the employee to request that leave be designated as FMLA 
leave eliminates the need for the employer to question the employee and 
pry into the employee's and the employee's family's private matters, as 
required under current law, and helps eliminate personal liability for 
employer supervisors who should not be expected to be experts in the 
vague and complex regulations which even attorneys have a difficult 
time understanding.
  With respect to leave taken because of the employee's own serious 
health condition, the FMLA Clarification Act permits an employer to 
require the employee to choose between taking unpaid leave provided by 
the FMLA or paid absence under an employer's collective bargaining 
agreement or other sick leave, sick pay, or disability plan, program, 
or policy of the employer. This change provides incentive for employers 
to continue their generous sick leave policies while providing a 
disincentive to employers considering getting rid of such employee-
friendly plans, including those negotiated by the employer and the 
employee's union representative. Paid leave would be subject to the 
employer's normal work rules and procedures for taking such leave, 
including work rules and procedures dealing with attendance 
requirements.
  Despite the common belief that leave under the FMLA is necessarily 
unpaid, employers having generous sick leave policies, or who have 
worked out employee-friendly sick leave programs with unions in 
collective bargaining agreements, are being penalized by the FMLA. In 
fact, for many companies, most FMLA leave has become paid leave because 
the regulations state that an employer must observe any employment 
benefit program or plan than provides greater rights than the FMLA. 
Furthermore, because employers cannot use the taking of FMLA leave as a 
negative factor in employment actions, such as hiring, promotions or 
disciplinary actions, nor can they count FMLA leave under ``no fault'' 
attendance policies, the regulations prohibit employers from using 
disciplinary attendance policies to manage employees' absences, even 
though employers are required to pay for the absences under their 
short-term disability programs if either the employee or the employer 
elects to substitute paid leave.
  My bill also addresses some of the problems employers often face in 
determining the validity of an employee's FMLA certification, by 
clarifying that sufficient certification under the FMLA must include 
``the appropriate medical facts, which must be documented by objective 
medical findings.''
  Health care providers are accustomed to responding to telephone 
inquiries from employers' health care providers and the information 
they provide on the FMLA certification form is often internally 
inconsistent or does not support a finding of incapacity. The bill 
would require the employee's health care provider to document on the 
form the objective medical findings supporting the finding of 
incapacity. Due to the limits imposed by the Department of Labor's 
regulations, the employer's health care provider cannot even call the 
employee's health care provider if the employee declines to give 
permission. Nor can the employer's health care provider obtain the 
usual documentary support for a disability. These limitations either 
lead the employer to deny FMLA coverage due to lack of sufficient 
certification, or to grant FMLA coverage despite the lack of sufficient 
factual support just to avoid a dispute. This clarification would 
simply give the employer more information upon which to determine 
whether or not a leave request qualifies under the FMLA.

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