Do employees abuse the Family and Medical Leave Act?

By PHILIP WALZER
The Virginian-Pilot

NORFOLK - When the Family and Medical Leave Act was signed into law in 1993, it was heralded as a welcome cushion to give extended time to new mothers and others caring for close relatives.

Since then, however, businesses have voiced frustration about the other beneficiaries of the federal law: workers who take "intermittent leave" for "chronic conditions" that range from diabetes to insomnia.

"My experience has been, employers want to get it right and want to allow leaves," said Timothy McConville, an employment lawyer with the Norfolk office of Willcox & Savage. "But you get into some issues sometimes where you've got some serious questions whether the employee really has a migraine headache or back pain."

McConville and a colleague, Susan Blackman, led a seminar Wednesday on "Walking the FMLA Tightrope: Balancing Company Needs and Employee Rights " at a time when the balance might be shifting.

They spoke to more than 160 people whose knowing laughter indicated familiarity with such questions as: What do you do if you think the worker who plans to take Fridays off to care for his sick wife will be out golfing instead?

Bosses now may request second opinions if they have doubts about a medical claim. If the lawyers had their way, employers would have many more options, including freedom to ask the first doctor for more details about the condition and the option of requiring workers to submit signed statements with every absence.

It might not be just wishful thinking.

The Department of Labor recently closed a "comment period" to solicit reaction - and proposed changes - to the rules underlying the Family and Medical Leave Act. It received about 15,500 responses.

The agency "thankfully recognized there are some serious problems with how FMLA works in the real world," Blackman told the audience at the Hilton Norfolk Airport.

The action has delighted businesses and worried labor groups.

"This is a Labor Department that has been very friendly toward employers," said Cecilie Counts, a legislative representative in Washington for the AFL-CIO, which has 10 million members.

She said, "We think the law has worked well. It certainly has helped with the unexpected crises that come up in people's lives. It has helped people retain jobs."

What happens next is unclear. A spokeswoman for the department would say only that Labor officials are reviewing the comments.

About 2.4 million people took advantage of the Family and Medical Leave Act in 2005, the most recent year statistics are available, according to the Labor Department.

The law allows up to 12 unpaid weeks per year for a worker to deliver and take care of a baby; arrange an adoption; take medical leave if an employee can't work due to a "serious health condition "; or care for a relative with a "serious health condition." The leave may be taken in one chunk or, for recurring problems, intermittently.

It applies at workplaces with at least 50 employees within a 75-mile radius.

The U.S. Chamber of Commerce has echoed many of the critiques voiced by the Willcox & Savage lawyers.

"It's just too confusing and too vague," said Marc Freedman, director of labor law policy for the chamber, which has 3 million members. "Right now, the system is such that it allows an employee who wishes to, to game the system."

Proponents of change have urged the government to give employers more leeway to ask an employee's doctor for clarification of conditions.

That would be an "entirely reasonable, practical approach," McCon-ville said Wednesday. Now, after a worker submits "medical certification" for a leave, the employer may not contact the doctor directly but must communicate through the employer's health care provider.

Counts, of the AFL-CIO, said, however, that the current mechanism ensures privacy and no misunderstanding. "Nonmedical professionals often don't understand the jargon from medical professionals."

Another employer suggestion is that intermittent leave be taken in increments of no less than half a day. Currently, there is no minimum time frame.

"You can sit there and say, 'Who's going to take six minutes of leave?' " Freedman said. "But it undermines the employer's legitimate ability to have timely attendance on the job."

The half-day minimum, Willcox & Savage said in its written comments to the Labor Department, would "provide a reasonable deterrence to the abuse of leave."

Counts said a minimum would hamper both workers and bosses. Now, if employees need a short amount of time off, perhaps to get an allergy shot or nurse a child, "they have an incentive to come back as soon as they want to."

Many employees, she said, can't take advantage of the leave because it's not paid. That's why the AFL-CIO supports a bill by Sen. Christopher Dodd, D-Conn., to provide six weeks of annual paid leave, and another from Sen. Edward Kennedy, D-Mass., to require seven days a year of paid sick leave.

Those bills require congressional approval and the president's signature. The rule changes requested by businesses, on the other hand, could be enacted by the department after it solicits more public comment. Freedman predicted, however, that the Democratic majorities in the House and Senate would lean hard to block those changes.

"They don't want a Republican administration to touch these regulations in any form," he said.

As for the suspected golfer, an employer needs to get a second medical opinion, or perhaps a third, before it acts, McConville said.

"If all you have is belief, the answer is no," he said. "You can't deny the leave."