Family and Medical Leave Act - Research Paper Example

Family and Medical Leave Act Overview of the Law The “Family and Medical Leave Act of 1993” was passed into law on February 5, 1993 as Public Law 103-3 upon the signing of Pres. William Clinton (H.R. 1--103rd Congress, 1993). The House approved it on February 3, 1993 while the Senate passed the same the following day, February 4, 1993 (H.R. 1--103rd Congress, 1993). Non-federal and some federal employees are covered under Title I (Office of Personnel, 1996). The rest of the federal employees are covered by Title II (Office of Personnel, 1996). The law covers all private, state and local government personnel, certain federal employees and congressional staff (subject U.S. Office of Personnel Management or Congress jurisdiction) (The Family, 2004). FMLA embodies provisions on coverage of employer, the benefits of employees, requirements for entitlement, continuity of health benefits during leave, returning to the same position after the leave, notice and certification, and security of employees who avail of such leave (The Family, 2004). It is a social welfare law with a noble purpose, which is to give employees a balanced work-family life. In this sense, the employee can render assistance to family members in their health or medical needs without imperiling his or her security at work (FMLA History, n.d.). It also aims to provide economic security to the employee and advance the interest of the government in upholding the integrity and stability of the family (FMLA History, n.d.). Thus, while it sought to accommodate the goals of employers, it also seeks to lessen discrimination on account of sex and promote equality among male and female employees (FMLA History, n.d.). With FMLA, the employee can have time to attend to the needs of the child, an elder or newly-born baby (FMLA History, n.d.) without fear of losing the job. FMLA intends to reconcile the interests of both employers and employees on the aspect of providing urgent care for family members (FMLA History, n.d.). It is administered and enforced by the U.S. Department of Labor's Employment Standards Administration, Wage and Hour Division (The Family, 2004). Complaints are handled by the Wage and Hour Division and if not resolved, the Department of Labor can file a case in court to enforce compliance (The Family, 2004). A private civil case can also be filed by individual employees against the employer for violation or non-compliance with the law (The Family, 2004). As defined in the law, “serious health condition” refers to the physical or mental condition, illness or injury: a) that will require an overnight confinement in any institution (e.g. hospital, hospice, medical facility, etc.) due to incapacity or treatment, and b) when continuing treatment by a health care provider is needed for more than three consecutive days (with two or more times treatment supervised by a provider, one treatment but the regimen is continuous), pregnancy care does not need a visit to the provider, chronic serious health condition that has been treated for a long time does not require visit to the provider for each absence of the employee, permanent or long-term condition (e.g. terminal cancer) may only need supervision, and absence due to several treatments for “restorative surgery” or a condition that would result to incapacity of more than three days if treatment is not given (e.g. chemotherapy) (The Family, 2004, Leave Entitlement, para. 12). Also defined is the term “health care provider” that includes a doctor, podiatrist, optometrist, nurse, clinical social workers, etc. (The Family, 2004). The law prohibits the employer to hinder the implementation of the rights granted, or discriminate an employee due to the latter’s participation in any FMLA-related proceeding (The Family, 2004). It does not affect the policy of the employer granting more leave rights to the employees, and in fact, it exhorts employers to provide more leave privileges (The Family, 2004). Coverage, Entitlement and Benefits It covers all government agencies such as federal, state and local employers; local schools; and private firms with more than 50 employees (The Family, 2004). These private companies include joint employers or successors-in-interest of employers, and involved in commercial activity in a minimum of 20 workweeks during the present or previous calendar year (The Family, 2004). The employee will be eligible for FMLA leave provided he or she is working for a covered employer with a minimum of 50 workers, has rendered service for 12 months, has worked for a minimum of 1,250 hours during the past 12 months, and the work location is within US territory or control (The Family, 2004). The employer has a choice when to reckon the computation of a year such as the “calendar year, a fixed 12-month leave or fiscal year, or a 12-month period prior to or after the commencement of leave” (The Family, 2004, para. 2). Under the Act, employees would be allowed to have twelve workweeks unpaid leave within a year due to the following reasons: a) the birth of a child and caring for the same, b) when the child is placed with the employee for the purpose of adoption or foster care, c) caring for the parent, child or spouse who is seriously sick, and d) such health condition impedes the employee to perform his/her vital functions at work (Family and Medical, n.d.; The Family, 2004). The leave allowed under this law augments the paid leave granted to an employee. The paid leave (annual or sick leave) may be substituted by a personnel “for any unpaid leave” of the Act (Family and Medical, n.d., para. 2). The FMLA leave need not be used continuously (Family and Medical, n.d.). The paid sick leave, however, is limited (Family and Medical, n.d.) and therefore, the substitution may be allowed only up to the allowed number of days. In case a collective bargaining agreement between the employer and employees exists at the time of the effectivity of the law, then it will take effect upon the termination of the agreement or on February 5, 1994, if the latter is earlier (The Family, 2004). The law gives protection to an employee who availed of the FMLA right. Thus, he or she must assume the same position or substantially same position upon return to work. The salary, benefits and terms of employment should likewise be the same (Family and Medical, n.d.). The health coverage of the employee remains during the FMLA leave, the premium for such coverage may be shared by the employee upon resumption of work (Family and Medical, n.d.). Notice should be made thirty days before the leave (Family and Medical, n.d.). If such is not possible because the situation is critical, notice must be made the soonest time possible (Family and Medical, n.d.). For spouses working in the same company, both of them can only avail of the total of 12 workweeks for the same purposes (e.g. caring for a newly born child) (The Family, 2004). Intermittent leave allowed under this law may mean reduction in the daily or weekly working hours or taking the leave in brief periods (The Family, 2004). But there are specific requirements for such intermittent leave. For instance, grounds for leave such as care of newborn or placement for foster care or adoption requires the approval of the employer (The Family, 2004). Intermittent leave can be allowed for medical conditions (e.g. serious illness), whether to care for a family member or the employee is the one who is sick (The Family, 2004). The accrued paid leave and vacation leave can be applied to cover any or all of the FMLA leave (The Family, 2004). The employer will determine which paid leave can be applied to the FMLA leave according to the information given by the employee (The Family, 2004). A medical certificate can be requested by the employee for such FMLA leave (Family and Medical, n.d.). The Certification of Health Care Provider form (prescribed by the US Department of Labor) given to the employee by the health care provider requires basic information pertaining to the application such as employee's and patient's names, medical condition, commencement of condition and possible length, possibility of working intermittently, additional treatments required, treatment regimen, and other concerns that would provide a clearer picture of the situation (U.S. Department of Labor, n.d.). The form also defines and provides the conditions considered as “Serious Health Condition” (U.S. Department of Labor, n.d.). A group insurance taken by the employer before the leave shall be in force and remain during the leave, with the same benefits as if the employee is working (The Family, 2004). But if the employee failed to report to work after the FMLA leave, the employer may recover the premium it paid for such insurance (The Family, 2004). In case the employee cannot be restored to the former position, the employer should give notice to the employee the soonest time possible together with the reasons for such decision (The Family, 2004). Employees (e.g. executive, administrative, and professional personnel) who fall under the Fair Labor Standards Act (FLSA) requirements (on exemption from minimum wage and overtime) retain their exempt status although they utilize the FMLA leave (The Family, 2004). Problems with Implementation and Revisions Different companies have different situations unique to them that render implementation rather problematic. The changes in the rules and regulations then are intended to address these concerns. It has been observed that the employers covered by the law and the employees find it difficult to comply with the requirements (Gross, 2009). They are generally left on their own on how to fit their unique circumstances into the provisions of the law (Gross, 2009). Moreover, the federal courts differ in interpretations of the law with regard to compliance (Gross, 2009). Seeing that not all situations are covered by previous regulations, revisions have to be made once in a while so that the intent of the law can be adequately and realistically be met. The original FMLA lays down the intent of the law and basic provisions on coverage, benefits and requirements. To implement it, regulations must be passed by the implementing agency. The Office of Personnel Management (OPM) released an interim rules on July 23, 1993 for some portions of Title II (Office of Personnel, 1996). The final implementing rules for Title I issued by the Secretary of Labor are embodied in the Federal Register dated January 6, 1995 (The Family, 2004; Office of Personnel, 1996). The final regulations of the Department of Labor took effect on April 6, 1995 (Office of Personnel, 1996). The OPM issued its final rules in accordance with the Department of Labor rules and took effect on January 6, 1997 (Office of Personnel, 1996). The January 1997 revision made changes in some definitions (e.g. “Continuing treatment by a health care provider,” “essential functions,” “foster care,” etc.) (Office of Personnel, 1996). Other details were addressed by the revision such as making the position left vacant by the employee available as an alternative position but not the same to the original position of the employee on leave (Office of Personnel, 1996). As an alternative position, the employer may hire someone to perform some functions. Since substitution of annual and sick leave with FMLA leave is allowed, it was granted by OPM that full-time personnel can use sick leave of up to 13 workdays to care for a family member with physical ailment or when care is needed after a medical, dental, optical, etc. treatment (Office of Personnel, 1996). Clinton (1997) proposed expansion of coverage that would include unpaid leave of twenty-four hours so that an employee can attend a school activity that would advance the education of the child (e.g. meeting with care providers or new care facility), to go with the child for the regular medical or dental check-up (e.g. vaccination), and to attend to health care needs of elders in the family (e.g. regular medical check-up, make arrangement for meals or housing). Implementation of the FMLA poses some problems with organizations as reflected in the 2006-2007 survey (with 521 respondents) conducted by the Society for Human Resource Management (SHRM), such as “tracking and administering intermittent leave, measuring costs related to complying with the regulations, and determining if a serious health condition qualifies for FMLA-related leave” (Leonard, 2007, para. 2). Besides the tracking problem (which is a major concern), there are also false medical applications and difficulty in administering intermittent leaves (this is managed by increasing the workload of others). Due to the complexity in the implementation of the law, amendments have to be introduced to facilitate its administration and compliance. Thus, the revised regulations for FMLA was issued and took effect on January 16, 2009 (Gross, 2009). The revision included provisions on military service (Gross, 2009). It also introduced new forms that would cover different cases (United States, n.d.). The new forms are as follows: a) Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E), b) Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F), c) Notice of Eligibility and Rights & Responsibilities (WH-381), d) Designation Notice to Employee of FMLA Leave (WH-382), e) Certification of Qualifying Exigency For Military Family Leave (WH-384), and f) Certification for Serious Injury or Illness of Covered Service member -- for Military Family Leave (WH-385) (United States, n.d.; Blondman & Iley, 2009, January). For an employee to be eligible, the 12-month employment period need not be continuous and is reckoned not on the start of the leave but after it has started (Gross, 2009). A new regulation requires that proof of “continuing treatment” provided by a health care provider can be shown by the incapacity of the employee of more than three days (Gross, 2009, para. 4). It was also detailed on how the holidays can be counted against the FMLA leave depending on whether the FMLA leave would be a full week or partial leave (Gross, 2009). The employee may use a paid leave instead of unpaid leave but he or she has to comply with the requirements of the paid leave while the time will be counted against the FMLA allowed leaves (Gross, 2009). The employer is now allowed to consider the absences under the FMLA leave for the purpose of computing bonus or incentive for performance policies (e.g. perfect attendance) (Gross, 2009). Light duty does not entitle FMLA leaves, but when the employee performs voluntary light duty assignment, he or she should be restored to his/her previous work upon the termination of the light duty but should be within the 12-month FMLA leave (Gross, 2009). The employee can waive the rights (e.g. settle or release claims against a previous employer) granted by FMLA without seeking the approval of the courts or the Labor Department (Gross, 2009). Employer is given five days (previously two days) to give notice to employees of their eligibility upon knowing of such need for leave, and the penalty for failure to comply with the requirements of notice has also been modified (Gross, 2009). The employer may now oblige an employee to give written notice according to the company’s common practice on notice (Gross, 2009). Failure to comply may cause the employer to deny or delay the grant of leave (Gross, 2009). When a leave applied for refers to a formerly certified leave, the certified leave should be mentioned (Gross, 2009). The two-day notice for unforeseen conditions is no longer required and the employee can give such notice as soon as possible (Gross, 2009). The final regulations released by the Office of Personnel Management that took effect on June 7, 2000 provides that in case the employee (or representative) cannot invoke entitlement during the period of absence due to physical or mental incapacity, it can be done within two workdays upon returning to work (Rules and Regulations, 2000). Since invoking retroactively runs counter to the procedure on notification, the incapacity should be supported by a written medical certification and documentation (admissible to the employer) that satisfactorily explains the reason for the representative’s inability to invoke entitlement during the absence (Rules and Regulations, 2000). Conclusion A law passed does not exist in a vacuum but has to be enforced in a dynamic society. Although the original law was intended to meet all possible situations, the actual implementation would pose problems with the variation in organizational setup and conditions of employees. Thus, after the passage of the FMLA in 1993 and initial rules and regulations, more revised rules have to be passed in order to address the problems and complexities accompanying the implementation of the law. The new revisions in the rules are intended to meet the problems encountered in the past. It is yet to be seen if the current rules are able to meet the objectives of the law, and at the same time minimize false claims that the corporate employers complain of. The changes were meant to make facilitation of the leave easier for employers, and clearer for employees to understand and comply (Gross, 2009). However, Gross (2009) expresses hesitance whether the revisions would function as intended by the lawmakers. References Blondman, M. & Iley, B.T. (2009, January). New FMLA Regulations: What Every Employer Should Know. Retrieved 28 August 2010, from http://www.blankrome.com/index.cfm?contentID=37&itemID=1861 Clinton, W.J. (1997, April 11). Expanded Family and Medical Leave Policies. Memorandum for the Heads of Executive Departments and Agencies. U.S. Office of Personnel Management, The White House, Washington. Retrieved 28 August 2010, from http://www.opm.gov/oca/leave/html/fampres.htm Family and Medical Leave. (n.d.). U.S. Office of Personnel Management. Retrieved 28 August 2010, from http://www.opm.gov/oca/leave/html/fmlafac2.asp FMLA History. (n.d.). The Family and Medical Leave Act of 1993. Retrieved 29 August 2010, from http://www.employmentlawadvisors.com/fmla/fmla_history.htm Gross, B. 2009 Regulatory Changes to the Family and Medical Leave Act (FMLA). AllBusiness. Retrieved 28 August 2010, from http://www.allbusiness.com/labor-employment/compensation-benefits-employee/12278217-1.html H.R. 1--103rd Congress: Family and Medical Leave Act of 1993. (1993). 103rd Congress 1993-1994. In GovTrack.us (database of federal legislation). Retrieved 29 August 2010, from http://www.govtrack.us/congress/bill.xpd?bill=h103-1 Leonard, B. (2007, August 1). SHRM survey highlights problems with FMLA. HRMagazine. AllBusiness. Retrieved 28 August 2010, from http://www.allbusiness.com/labor-employment/compensation-benefits-employee/5504917-1.html Office of Personnel Management. (1996, December 5). Family and Medical Leave. 5 CFR Parts 630 and 890 RIN 3206-AH 10. Retrieved 30 August 2010, from http://www.opm.gov/oca/fmla/fmla96.pdf Rules and Regulations. (2000, May 8). Office of Personnel Management. Federal Register, 65(89), pp. 26483 –26487. Retrieved 28 August 2010, from http://www.opm.gov/oca/leave/html/FMLACHNG.PDF The Family and Medical Leave Act of 1993. (2004, June). Almanac of Policy Issues. Retrieved 29 August 2010, from http://www.policyalmanac.org/economic/archive/family_medical_leave.shtml United States Department of Labor . (n.d.). Revised Final Regulations Under the Family and Medical Leave Act (RIN 1215-AB35). Wage and Hour Division (WHD). Retrieved 28 August 2010, from http://www.dol.gov/whd/fmla/finalrule.htm U.S. Department of Labor. (n.d.). Certification of Health Care Provider (Family and Medical Leave Act of 1993). Employment Standards Administration Wage and Hour Division. Retrieved 28 August 2010, from http://www.opm.gov/oca/leave/html/WH380CertificationOfHealthCareProvider1.pdf Read More