Passed by Congress six years ago, to labors delight and the business communitys chagrin, the Family Medical Leave Act struck something of a mom-and-apple-pie chord for most people.
Who, after all, could really argue with mandating that employers afford some scheduling flexibility for families coping with new children or chronic ailments? Hillary Clinton might have lost her battle for health care reform, but on this issue, almost equally dear to her, she won the day while Congress was still controlled by Democrats.
But like any piece of far-reaching legislation which tinkers with the balance of power between employers (in this case of 50 or more) and employees, the details have proved far trickier than the grand outlines of the law initially suggested. Implementation of the act has been plagued by a number of problems, say employment-law attorneys, not the least of which is wide employer ignorance of what the law requires.
Believe it or not, its been around for six years, the Department of Labor took two years to enact it, and people still dont have any idea what it means, Calfee Halter & Griswolds Rick Goddard recently said at an employment-law conference.
Looking back, he said, its clear that many employers have used the law to raise employee morale. But it also raises significant areas of possible abuse.
One key problem arises from understandable employer desire to build flexibility into interpreting the law. The trouble with flexibility, of course, is that it opens the door to charges that the rules were wielded by employers with more flexibility for some than for others.
You can have a woman who takes 13 weeks of maternity leave (one more than specified under the law), and shes fired. And then you have old Joe whos worked forever, and he has a heart attack, takes four months off, and you welcome him back. Well, you have a classic sex-discrimination suit on your hands, and you will lose, said Goddard.
People see this as a game, he warned. When you bend over backward to accommodate someone, you can open yourself up to suits from those for whom the rules werent bent quite so far. If youre clear as to how youre going to define the exceptions, youre going to do yourself a lot of good.
To complicate matters further, the U.S. Sixth Circuit Court of Appeals in Cincinnati ruled in a recent case that the Department of Labors regulations implementing the FMLA are too complicated and thus should be revisited. But the D.O.L. didnt back off, saying it will continue to enforce the regulations as they are while the matter is thrashed out between the agency and the courts.
One of the biggest areas of confusion has been over the matter of what precisely constitutes serious health conditions that would trigger the sanctioned leave. Actually, theres not that much gray area. According to the statute, a serious health condition is defined as any illness, injury impairment or a physical or mental condition that involves:
- Inpatient care. Any period of incapacity of more than three consecutive calendar days that also involves two or more treatments by a health care provider or one treatment that results in continuing treatment under the providers supervision.
- Any period of incapacity due to pregnancy or prenatal care.
- A chronic, serious health condition, such as asthma, diabetes or epilepsy that continues over an extended time period, requires periodic treatment or comes up episodically.
- Any period of incapacity which is permanent or long term for which treatment may not be effective.
- Any period of absence to receive multiple treatments or restorative surgery after an injury.
The act does not, in most cases, cover voluntary or cosmetic treatments which arent medically necessary, routine preventive care, nor maladies such as colds, flu, ear aches, upset stomach, minor ulcers or headaches (other than migraines).
The law does, however, make it incumbent upon employers to train their supervisors especially well to listen for trip wires, says Calfee Halters Wendy Stark.
The frightening thing is they [employee] only have to give you enough information [that theyre invoking the FMLA] for you to figure it out. Whats even more frightening is that notice to supervisors constitutes notifying the employer. You have to train your supervisors on this; I cant stress that enough.
And just in case supervisors still take a lax attitude, she offered a tip to get their attention.
If you need a scare tactic to wake up your supervisors about the FMLA, here it is: They can be individually liable [for damages] if they exercised sufficient oversight over the employee.
How to reach: Calfee Halter & Griswold, (216) 622-8200
John Ettorre (email@example.com) is a contributing editor at SBN.