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Some make FMLA contentious

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Sep 29, 2005 (UPI via COMTEX) -- Part 2 of 2. The Family and Medical Leave Act was contentious when Congress passed it in 1993 and it remains contentious today, subject to at least seven new rounds of hearings on Capitol Hill.

At issue is how employers must administer sick leave and how they can deal with those who abuse the system -- although about 46 percent of U.S. workers receive no paid sick days and the FMLA is all many have to rely on if they or their children fall ill.

Years ago a co-worker of mine took two weeks off because he said his father needed prostate surgery. I ended up working more hours during that time to help cover his shift. I was not happy when I learned later that his father never had surgery.

Many companies complain that some workers abuse the system and take excessive time off, causing morale problems. The FMLA prohibits companies from dismissing employees for taking excessive sick time off because they cannot be fired for taking the unpaid leave, according to Michael Eastman, director of labor policy for the U.S. Chamber of Commerce.

"It's our top (labor) regulatory issue," Eastman told UPI's Caregiving. "We don't think the way to address it is through federal mandates -- we are trying to get the regulations rewritten."

The chamber has advocated reforms that would give employers greater ability to manage absenteeism that is attributable to the abuse of the FMLA, Eastman said.

"For example, the law allows leave for a serious health condition, but the problem is the FMLA has been interpreted extremely broadly to include something like the common cold, where recovery is brief," he continued. "Federal protected leave should not include the common cold. We need a clearer definition of serious health conditions."

The chamber also wants the federal government to reduce the burden on employers of tracking intermittent leave, which must be done in increments as small as six minutes, and instead permit the use of award programs that accurately reflect an employee's actual attendance at work.

"Employers have a national campaign led by the Chamber of Commerce and the National Association of Manufacturers to make it harder to take family leave -- they have identified the flu as not serious enough," Ross Eisenbrey, vice president and policy director at the Economic Policy Institute in Washington. "The law doesn't require records be kept in six-minute increments. That was allowed for those employers who already kept employee records in six-minute increments. If employers find it difficult to keep FMLA records in such small increments, then they should stop keeping all their employment records in six-minute increments."

The FMLA requires employers with more than 50 employees to grant an employee who has been on the payroll for 20 or more weeks up to a total of 12 work weeks of unpaid leave during any 12-month period for one or more of the following reasons:

-- the birth and care of the newborn child of the employee;

-- placement with the employee of a son or daughter for adoption or foster care;

-- to care for an immediate family member, such as a spouse, child or parent, but not an in-law with a serious health condition, and

-- to take medical leave when the employee is unable to work because of a serious health condition.

The law requires employers' group health benefits to be maintained during job-protected leave.

"Many human resource managers tell me that 95 percent of their time is spent dealing with 5 percent of employees," Eastman said. "Most employees do their jobs and are conscientious, but a few employees cause most of the headaches in organizations. Both the employees and supervisors know who the abusers of FMLA are. It causes problems among co-workers, because they often have to pick up the work (for those) who take advantage."

He cited one U.S. automaker that had a perfect attendance program and placed the names of those who always showed up when scheduled into a lottery for a free car, but one year later the person who won the car turned out to be someone whom many thought had abused the FMLA. Many companies have done away with perfect-attendance programs for this reason.

The difficulty that businesses endure either to pay for replacement workers or to have other co-workers pick up the slack can be appreciated. Most of the discussion concerning FMLA is about how it is tracked or various abuse horror stories; the much larger impact of the legislation is that workers obtained the right to stay employed while they were ill or taking care of a sick family member.

For some 46 percent of U.S. workers who do not get any paid sick days, FMLA might be their only way of not getting fired.

Alex Cukan is an award-winning journalist, but she has always considered caregiving her primary job. E-mail:


Copyright 2005 by United Press International

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