Family Medical Leave Act: A Vitally Needed Law - Essay Example

FMLA: A Vitally Needed Law Introduction When a person gets sick or infirmed and requires a caretaker to tend to their daily needs, the necessary instrumental support almost always comes from the family. If a child is sick, a family member will get them to the doctor. If an elderly person gets injured, a family member will stay with them during the period of recovery. Women who have had a baby will need additional time away from work, as well as some extra help taking care of the newborn infant. In many cases this creates a conflict between the employee that needs time away from their job, and the employer who needs a productive worker to fill the position. Until 1993, workers were at the mercy of their employer's demands, and would often be forced to resign to accommodate their sick child or ailing parent. Larger workforces usually had some form of a leave of absence, but there was no standardization or legal protection to guarantee that your job would still be waiting for you when you returned. In 1993, President Clinton signed the Family Medical Leave Act (FMLA) that guaranteed US workers that they would have some amount of legal protection if they are forced to take time off from work to take care of a sick family member, or help a woman through the childbirth period. While the intent of the FMLA is simple enough, there are myriad caveats and regulations that enact the legislation. Scope and Relevance of This Paper The 1993 FMLA, and subsequent amendments, have created a law that allows time off to be taken by an immediate family member to care for a sick or injured relative. The time frame allowed is generally 12 weeks, though this may vary in specific situations. Because the law attempts to accommodate a wide range of scenarios, and anticipate the application of the law, it has numerous special provisions and entitlements. The purpose of this paper will be to clearly define the eligibility requirements for FMLA leave. This paper will explain what is required to obtain a leave under FMLA. It will present examples of the proper use of the FMLA, as well as the improper use of the Act. This paper will examine the potential for fraud and abuse under the law, and what is currently done to eliminate or reduce these cases. In addition, it will explain the penalty for abuse, and attempt to reveal why abuse may be difficult to identify and punish. It will accomplish these goals by examining the law from the standpoint of the individual as well as the organization. While this paper will strive to be complete, it is recognized that the number of specific rules, regulations, and exceptions makes a full and detailed explanation beyond the scope of this paper. The paper will cover the most widely used, and most common requests that are made to employers by workers that have a family member in need of care. Brief Historical Background The 1993 Act was finally passed and signed into law by President Clinton after two unsuccessful attempts were vetoed by President George Bush SR. in the 101st and 102nd Congresses. A Senate Report from the time noted the "demographic revolution" of the time, as well as the increasing numbers of women in the workforce, the number of adults who care for their parents, and the growing number of single parent families (Lee, 1993, 8). The Senate further contended that these numbers would have "profound consequences for the lives of working men and women and their families" (Lee, 1993, 8). In essence, single parent homes left sick children with no caregiver except the breadwinner, and aging adults that would be left to the mercy of the welfare system. In passing the FMLA in 1993 Congress stated that the Act was to "provide job security as well as a proper balance between work and family life for employees, resulting in increased worker productivity for employers" (Lee, 1993, 9). At the time the bill was passed, private employers had "failed to adequately respond to economic and social changes that intensified the tensions between work and family" (Lee, 1993, 8). In addition, there was considerable resistance from the business community, who viewed the bill as an unwarranted intrusion and an added cost for businesses. However, a report issued three years after the Act's passage found that, "For most employers, compliance is easy, the costs are non-existent or small and the effects are minimal" (Wisensale, 2003, p.140). The FMLA was a bill that was desperately needed so that working men and women would not be forced to make a choice between their job and their family. Eligibility: The Basics In an effort to protect very small businesses that only have a handful of employees from the inability to operate if a worker leaves for three months, the Act has exempted some businesses. Coverage under the FMLA only applies to businesses that have more than 50 employees and works over half the calendar year. In addition, the 50 employees may work at different locations, though there is a 75-mile proximity rule. Once an employer meets the 50-employee test, and the employees are within 75 miles, they remain subject to the law until the end of the second calendar year. While this is the basic rule, there are provisions for integrated employers, interrelation of operations, centralized control of labor relations, and the degree of common ownership. Because the FMLA, in an effort to reduce the need for litigation, has attempted to anticipate every conceivable option that could confront an employer, the basic rules have become quite complex (Fernstrom and Pranschke, 1993, pp.52-53). Just as an employer needs to meet specific guidelines to be subject to the FMLA, an employee must meet specific eligibility requirements. The Act requires that the worker be employed for at least the previous 12 months and had worked a minimum of 1250 hours during that period to qualify. It is the responsibility of the employer to keep accurate employee records, and the burden of proof is on the employer to verify the length of service and the hours worked (Fernstrom and Pranschke, 1993, pp.53-54). Once again, the FMLA makes special provisions, and makes allowances, for situations such as the cost of reinstating a 'key employee'. For example, if a star basketball player needs 12 weeks FMLA in the middle of the season, he may lose his position when retuning to the team. The team has probably retained another star and replacing him would be too costly, and could cause the team "substantial and grievous injury" if he were replaced again (Fernstrom and Pranschke, 1993, pp.54). While the law has attempted to be fair, the granting of the 12 weeks leave is a significant contribution to the worker, and compromises may have to be made. If the employer passes the requirements to be subject to the law, and the employee is eligible according to the rules, then the employee is eligible to take up to 12 weeks of unpaid leave from work in any 12-month period for three very specific reasons. First, for "the birth of a child and for newborn care or the placement of a child with the employee for adoption or foster care" (Fernstrom and Pranschke, 1993, pp.54). Second, is "the care of an employee's spouse, child or parent due to a serious health condition" (Fernstrom and Pranschke, 1993, pp.54). And third, "the employee's own serious health condition" (Fernstrom and Pranschke, 1993, pp.54). The term 'serious health condition' is defined in the regulations, and an employer may request that the employee provide certification of the illness (Fernstrom and Pranschke, 1993, pp.57). It covers both in-patient and out-patient coverage, mental and physical ailments, as well as prenatal care for pregnant women. Recent Amendments and Rulings The FMLA has been periodically amended to update the legislation and include workers who may not have been previously covered. In addition, litigation is often brought to get a court ruling in regards to coverage and eligibility. For example, in 2007 the Act was amended to include special provisions for members of the armed forces and their families, and now allows families to make child care arrangements, attend military ceremonies when the family has been requested, or attend to the affairs of a family member who has died or gone missing in action (Gisonny and Douglas, 2008, p.11). Because of the complexity of the regulations, litigation is often required to interpret the law. In a recent court case, an employee sued his employer after he was terminated for going on a drinking binge. The employee contended that he should be granted leave under the FMLA. However, the US Court of Appeals ruled that "absence because of the employee's use of the substance, rather than for treatment, does not qualify for FMLA leave" (Lawsuit tests FMLA, 2008, p.7). The courts have been quite clear at defining the FMLA, what a family member is, what constitutes a disease, and when the claim is going beyond the limitations and intent of the Act. The FMLA was designed to protect an employee and their job through temporary periods of illness, but was not intended to be any form of disability protection. The law is written such that it "protects employees who must leave work or reduce his or her work schedule for medical reasons, but it does not protect an employee who is unable to perform the job while at work" (ADA, FMLA, 2003, p.65). As an example, a job is protected for 12 weeks and the worker has a right to return to it. However, if after a 12-week leave, the worker does not have the stamina to do their previous job, they are not guaranteed any protection under the law or a job. Abuse and Fraud Abuse of the FMLA is primarily in the form of an employee being dishonest in an effort to get time off for which they are not eligible. Employers can request that a medical professional certify the employee's illness. The employer's request can include "the category of serious health conditions to which the employee's condition belongs, its probable duration, and a description of the medical facts which support the certification" (Lee, 1993, 10). This is the most prevalent form of employee abuse. Employees who violate the intention of the Act can be easily verified and subject to termination from the firm. Employers can also abuse the FMLA, usually by denying benefits to an employee who is legally eligible. For example, a woman who had just had a baby wished to use her paid vacation and sick days before taking her 12-week leave under the FMLA. The employer advised her that she must "take unpaid leave under the terms of the Family Medical Leave Act (FMLA)", and she was denied her paid vacation (Harty-Golder, 2006, p.40). However, this was incorrect and the woman was entitled to take her paid leave first. The penalty for this misinformation is generally pursued through the civil courts. According to Neuson (2006), "The FMLA allows an employee to sue his employer for interfering with his right to take leave or for retaliating against him for taking an FMLA leave" (p.14). With employers, it is often difficult to discern whether they are intentionally denying a worker their rights, or simply unaware of a very complex law. Criticisms While the FMLA has been a necessary relief for the many single mothers or fathers that must care for a sick child, it has not been without its critics. One of the major complaints with the FMLA is the fact that it is unpaid. Many of the people that could benefit the most are the ones that cannot afford to take 12 weeks of leave without pay. A 2002 study by the Department of Labor reported that "63.9 percent of employees eligible for FMLA leave could not financially afford to take such leave due to the fact that it was unpaid" (Mello, 2006, p.153). When the bill was first considered, "Congress focused on budget deficits [and] dropped their campaign to get paid leave included in the FMLA" (Stewart, 2003, p.845). In addition, workers wishing to take advantage of the leave may be at the lower end of the socio-economic scale. This lack of power places them at risk for termination if they request a legitimate leave. For example, a woman in Kansas was fired soon after she announced her pregnancy and applied for leave under the FMLA. After a court battle, it was found that the employer, Stauffer Inc., had illegally terminated her because of her FMLA request. The court found that "the plaintiffs evidence presented a genuine issue of material fact concerning Stauffer's discriminatory intent" (Kansas court denies, 1996, p.271). However, this can be a lengthy and costly recourse for an individual considering bringing a case against an employer. Additionally, some critics have contended that the certification for an employee's medical condition is too involved and compromises the medical privacy of the worker. According to Lee (1993), "it is flawed because it requires an unnecessary over disclosure of an employee's personal medical information as a condition of obtaining leave" ( 12). In addition, the Act requires a period of notice, typically 30 days, before taking an FMLA leave. The 30-day requirement has been mediated by the courts in certain situations that are not foreseeable, and require "as soon as practicable under the facts and circumstances of the particular case" (Rennie, 2009, p.797). The downside of this ambiguity is that "employees who otherwise qualify for leave fail to fulfill the notice requirement and are barred from bringing claims (Rennie, 2009, p.798). Once again, the employer can take refuge behind the vague definitions and claim they are covered under the letter of the law. In conclusion, the Family Medical Leave Act (FMLA) is a law that protects the most vulnerable people in the workforce from unwarranted firing or recriminations when they need time away from work to care for a sick family member. Passed in 1993, it has evolved, through amendments and court cases, to include more covered individuals and become a more clearly defined Act. Fears of a high cost and an inconvenience for business have not materialized and the Act continues to be an important part of workers' legislation. The Act protects the worker for up to 12 weeks when they are confronted by a sick child, a pregnancy, injured parent, or being personally seriously ill. Critics have called for the leave to be paid, as many eligible employees cannot take advantage of the Act due to financial reasons. In addition, caveats that require notice and the ability of employers to be discriminatory, often places the worker at a disadvantage and their job at risk. Abuse and fraud in regards to FMLA is not unknown, but it is rare. Companies can demand that a medical professional certify an employee as seriously ill. Recourse for the company that has been lied to is to terminate the offending individual. However, companies may intentionally violate the Act as a means to deny the worker the rights that they are legitimately entitled to. In these situations the recourse is to sue the company in civil court, but the case may be difficult to prove. Even with its shortcomings, such as being unpaid, the FMLA is one of the most important pieces of workers' legislation that has been enacted in recent history. References ADA, FMLA - inability to perform essential functions of job; Reasonable accommodation, intermittent leave. (2003). Benefits Quarterly, 19(1), 63. Retrieved June 30, 2009, from Academic One File. Fernstrom, S. C., & Pranschke, S. C. (1993). Labor Department regulations for Family and Medical Leave Act. Benefits Quarterly, 9(4), 51-60. Retrieved June 30, 2009 Gisonny, R., & Douglas, S. (2008). FMLA expanded for leaves related to family members serving in the military. Benefits Quarterly, 24(3), 10-12. Retrieved June 30, 2009 Harty-Golder, B. (2006, October). The interesting provisions of FMLA. Medical Laboratory Observer, 40. Retrieved June 30, 2009, from Academic One File. Kansas court denies employment discrimination claims under ADA, FMLA, and PDA. (1996). The Journal of Law, Medicine, and Ethics, 24(3), 271-272. Retrieved June 30, 2009, from Academic One File. Lawsuit tests FMLA substance abuse treatment policies. (2008, May 19). Alcoholism & Drug Abuse Weekly, 7. Retrieved June 30, 2009, from Academic One File. Lee, K. (1993). The employees' quest for medical record privacy under the family and medical leave act. Suffolk University Law Review, 41(1). Retrieved June 30, 2009, from http://www.judicialview.com/Law-Review/Employment/The-Employees-Quest-for-Medical-Record-Privacy-Under-the-Family-and-Medical-Leave-Act/Suffolk-University-Law-Review/22/4565 Mello, J. A. (2006). Navigating the land mines of the Family and Medical Leave Act. Journal of Individual Employment Rights, 12(2), 151-163. Retrieved June 30, 2009, from Academic One File. Neuson, B. A. (2006). What you don't know about the FMLA can hurt you. Nursing Management, 37(5), 14-17. Retrieved June 30, 2009, from Academic One File. Rennie, J. J. (2009). Constructive notice under the Family and Medical Leave Act. The Yale Law Journal, 118(4), 795-805. Retrieved June 30, 2009, from Academic One File. Stewart, S. (2003). PDA, FMLA, and beyond: A brief look at past, present, and future sex discrimination laws and their effects on the teaching profession. Brigham Young University Education and Law Journal, 835-850. Retrieved June 30, 2009, from Academic One File. Wisensale, S. K. (2003). Two steps forward, one step back: The Family and Medical Leave Act as retrenchment policy. Review of Policy Research, 20(1), 135-151. Retrieved June 30, 2009, from Academic One File. Read More