I know you are busy, but I am hoping you can take a few minutes
out of your sequester stuff to help with the Family and Medical Leave Act, as
amended by the National Defense Authorization Act of 2008, as amended again by
the National Defense Authorization Act for Fiscal Year 2010, as amended yet
again by the Airline Flight Crew Technical Corrections Act of 2010.
Here's the thing. You guys get to enact whatever you
think will please your constituents, and then you dump on delegate the details
to the Department of Labor and go on your merry way.
Meanwhile, our employer clients have to live with the
mess you've created these laws. If they make a mistake, they're potentially
liable for back pay, reinstatement, back benefits, and possibly double damages
and an extra year of make-whole relief if the violation is found to be
And it's not really the DOL's fault either. (Well, it is
and it isn't.) They depend on you, and you're not doing your job. Man up!
If the law is relatively easy to understand and follow,
then fine. Our fault for not following it.
But if the law is so riddled with twists and turns and
ifs and buts, and if it has had so many unrelated provisions tacked on added,
it becomes very hard for well-meaning employers to follow. And if
it's that hard to follow, chances are that employers will make mistakes,
hurting both themselves and the employees whom the law was intended to protect.
Let's face it: the FMLA has been amended too many
times by congresspersons who didn't bother to think before they enacted. If
you really want employees to get FMLA leave for legitimate reasons and
encourage employer compliance (as opposed to playing "gotcha!" with
employers), may I suggest the following:
*Scrap the FMLA and start from scratch,
creating one statute, drafted one time by one Congress, that covers all
employee leaves of absence that are protected by federal law. Family
and medical, military-related, and extensions of both that might currently be
required by the Americans with Disabilities Act. And anything else that you
think you're going to want to add in the next 10 years. The entire text of the
statute should not exceed ten single-sided 8.5 x 11" pages with 12-point
*Change the name of the law.
"Family and Medical Leave Act" was a nice name when the law first
came out, but it doesn't reflect the full picture any more. Rename it the
"Fair Workplace Leave of Absence Act."
*Direct the Department of Labor to make rules
interpreting the new FWLAA but limit it to 20 Federal Register pages,
including preamble. (Believe me, with the font size you use in
the Federal Register, 20 pages is gracious plenty. The EEOC never seems
to have any trouble issuing regulations that are concise and understandable.
Why can't the DOL do it?)
*Tell the Department of Labor that it is
allowed only one 11 x 14" fact sheet apiece for each type of covered
leave. (For those of you who are math- or FMLA-challenged, that
would mean no more than three fact sheets with the types of leave currently
protected.) What? you ask. I thought there was only one. There are
more than three FMLA Fact Sheets now? Yes, dear Congressperson, there are.
Go to this FMLA
Fact Sheet and see how many more FMLA Fact Sheets are referenced in
it. I come up with 10. That is ridiculous.
On the other hand, let the DOL post all the
"FAQs" they want. We got no problem with FAQs.
*Require exactly the same leave year to be
used in calculating all types of FWLAA leaves.
This military caregiver 26-week thing with its own unique leave year is giving
employers fits from a pure administrative standpoint. The four options
employers now have for measuring the leave year for other FMLA purposes are
fine. So, if you have to, let the "military caregiver" 26-week period
carry over into the following leave year -- that way employees won't lose any
leave and employers will be happy because they can use one single leave year
for all types of leave. This is what they call a "win-win." :-)
*Please, please, please do something
to help employers who have employees on indefinite intermittent leave that
results in unpredictable absences from work! This is by far the
biggest problem we see under the FMLA. Just as an example, say Joe is certified
for a legitimate chronic medical condition (say, migraine headaches). Joe
doesn't know when he'll have a migraine, but he sure can't be at work when he's
having one. So he calls in absent or leaves early, causing all kinds of
headaches (tehe - get it?) for his supervisor and his co-workers, who
aren't able to plan for and cover his frequent, unpredictable, but
The 2009 and new 2013 regulations (which will take effect
March 8) say that an employer may temporarily reassign an employee to a
position that better accommodates recurring periods of intermittent or reduced
schedule leave, as long as the employer does not reduce the employee's pay and
benefits. But they also say that this option is available only when the
employee needs intermittent or reduced schedule leave that is "foreseeable
based on planned medical treatment."
Dude. If the leave is foreseeable,
it's usually not a problem anyway. Employers can deal with foreseeable
absences. The problem is unforeseen, unplanned-for absences. You know,
the kind for which an employer may not have enough notice to be able to
reshuffle duties or bring in a substitute. DUH. Why has this not been
taken care of?
Please do it when you enact the FWLAA.
Please provide clearer statutory guidance on
how long an employer has to "extend" FMLA leave beyond the 12-week
period as a reasonable accommodation under the ADA.
Before the ADA was amended to broaden the definition of "disability,"
this was not much of a problem because few employees qualified for reasonable
accommodations, even if they were on FMLA leave. However, this changed
dramatically in 2009 with the effective date of the ADA Amendments Act. So now,
lots of employers have employees on FMLA leave whose time has run out, and the
employees' medical conditions qualify as "disabilities" within the
meaning of the ADAAA, and the employers want to do the right thing but aren't
sure what they do now.
At a minimum, the FWLAA should definitively answer these
questions: (1) what is the maximum period that "FMLA" leave has to be
extended? (2) if an employee "might" be well enough to return in,
say, six weeks after the FMLA runs out but doesn't know for a fact that he or
she will be, does the employer have to extend the leave? if so, for how long?
(3) does the extension requirement apply only if the employee's health care
provider has said with certainty that the employee will be able to return a few
weeks after the expiration of the FMLA leave?
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and
employment law firm Constangy, Brooks & Smith, LLP.
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