The U.S. Supreme Court gave the Administration its opening in 2002, when it ruled that employers must give workers more explanation about how their leave policies mesh with the FMLA. The White House and employers in turn viewed the edict as an opportunity to reopen the books and try to make the law less burdensome. Companies are targeting two key changes: narrowing the definition of a serious medical condition that qualifies for unpaid leave and upping the minimum leave employees can take, now as little as an hour or even less. Employers say such measures would help curb what they claim is abuse by employees who use the law to miss work when they aren't really sick. The law "has worked fairly well, but we're concerned with employees who use it as an excuse for, say, chronic tardiness," says Michael J. Eastman, director of labor law policy at the U.S. Chamber of Commerce.
Outraged advocacy groups insist that such sweeping changes would all but gut the FMLA. Their biggest fear: a new definition of a serious medical condition, which could slash usage of the law in half, they assert. "We haven't seen evidence of widespread abuse; employers just want to dilute a law used by millions of Americans," charges Debra Ness, president of the National Partnership for Women & Families, a Washington (D.C.) group.WHO'S CHEATING?
What's surprising about Corporate America's campaign is that there has been relatively little open complaint about the FMLA in recent years. The law allows workers to take up to 12 weeks of unpaid annual leave for the birth or adoption of a child and for the serious health condition of the employee or a parent or child. Although the FMLA was widely perceived as a maternity leave law, more than 80% of the time it's used by workers recovering from an illness or caring for a sick family member, surveys show. And 42% of users are men. Because companies with 50 or fewer workers are exempt, the law covers only 60% of the workforce. It's underused even by that group: One Labor Dept. survey found that 78% of those who say they need leave don't take it because they can't afford to lose the pay.
Even so, employers have had to make some accommodations. More than 14% of eligible workers use the FMLA every year, according to a recent survey of employers by the Employment Policy Foundation (EPF), a Washington pro-business group that supports FMLA changes. It also found a hike in the frequency of use: 35% of leave-takers were off more than once in 2004, the survey found, vs. 25% in 2000. And 10% took 15 or more leaves last year, the study shows. "People are using the law more, and we think it's not being used for what it was intended," asserts EPF President Janemarie Mulvey.
The survey doesn't show employee cheating, however, not even by frequent leave takers, concedes Mulvey. It also didn't ask about leave taken in hour-or-less increments. Another recent survey, by the Society for Human Resource Management (SHRM), did find that 51% of corporate HR professionals cited tracking small segments of FMLA leave as their top gripe about the law. But they weren't asked how big a problem that posed for scheduling or productivity, or whether abuse was suspected. The EPF and other business groups cite anecdotal abuse complaints. Critics say that's a thin reed on which to hang an FMLA overhaul.
Equally murky is the definition of a serious medical condition. The law doesn't delineate what counts as serious. But a rule of thumb has evolved that an illness is serious if it lasts for at least three days, is certified by a doctor's note, and requires some kind of follow-up after the initial medical visit. That allows room for abuse, companies say, especially for chronic conditions that can require episodic leave. "When there's a pattern of leave that raises questions, like an illness that always flares up at 2 p.m. on Friday, that's a problem," says Sarah F. Pierce, the manager of employment legislation at SHRM.
For business, the preferred remedy is to tighten up the definition of serious. Employer groups haven't publicly suggested any new language, but FMLA advocates suspect that employers would like to see a 10-day minimum leave, up from three days. That would be hugely controversial, since fully half of all FMLA use involves serious illnesses lasting fewer than 10 days, according to a 2000 Labor Dept. study.
The Labor Dept. missed a May target date to issue its proposed new rules and is still mulling what to do, says Assistant Secretary for Employment Standards Victoria A. Lipnic. If the plans involve significantly unraveling the FMLA, the Administration may well have another stiff workplace battle on its hands. By Aaron Bernstein in Washington