Raise your hand if you think the FMLA is working. I know I can't see you, but I have a pretty good feeling that a lot of hands will be in the air. Employees often don't understand when they are entitled to or eligible for leave, think they should have more than 12 weeks of leave, and that leave should be paid. Employers are baffled by the notice and certification process, frustrated with intermittent leave, and petrified of terminating anyone who takes FMLA leave for fear of a lawsuit. My perception, after advising clients on the FMLA for my entire career, is that the law can be a mess for everyone involved - employees and companies alike, and that no one really understands the FMLA's reciprocal duties and responsibilities.
Yet, a 181-page report published Tuesday by the Department of Labor (available in full here and in summary here), after receiving more than 15,000 comments from the public, concludes: "In the vast majority of cases, the FMLA is working as intended." The Report does confirm tension between employees' needs for intermittent leave to treat their own chronic health conditions and employers' needs to efficiently operate their businesses is the most prevalent complaint. "In some cases, the use of unscheduled intermittent leave appears to be causing a backlash by employers who are looking for every means possible ... to reduce absenteeism." It also confirms dissatisfaction with the medical certification process, in that employees don't like the time and cost of visits to health care providers to obtain certificates, and employers are frustrated with the lack of meaningful guidance to worker attendance. How can the DOL conclude that the FMLA is "working as intended", and yet at the same time report confusion and dissatisfaction with two of its most critical components, certification and intermittent leave? It's like saying the Indians played a great game last night, but their pitching was awful and the batters couldn't hit anything.
The open question is what will Congress do with this Report. Will it take the Report to mean that the status quo is fine, or will it use the Report as a means to introduce legislation that will expand upon the FMLA's protections for employees. Mandatory paid leave is certainly on this Congress's agenda. Expansion of the FMLA is a scary proposition for employers, who have a hard enough time dealing with the law as currently written. I encourage everyone to post comments here and let me know your thoughts on how the FMLA is working, and what, if anything, could be done to fix it.