[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
THE 15TH ANNIVERSARY OF THE
FAMILY MEDICAL LEAVE ACT:
ACHIEVEMENTS AND NEXT STEPS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, APRIL 10, 2008
__________
Serial No. 110-86
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
http://www.gpoaccess.gov/congress/house/education/index.html
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice Howard P. ``Buck'' McKeon,
Chairman California,
Donald M. Payne, New Jersey Senior Republican Member
Robert E. Andrews, New Jersey Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia Peter Hoekstra, Michigan
Lynn C. Woolsey, California Michael N. Castle, Delaware
Ruben Hinojosa, Texas Mark E. Souder, Indiana
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Ric Keller, Florida
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California John Kline, Minnesota
Danny K. Davis, Illinois Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Kenny Marchant, Texas
Timothy H. Bishop, New York Tom Price, Georgia
Linda T. Sanchez, California Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland Charles W. Boustany, Jr.,
Joe Sestak, Pennsylvania Louisiana
David Loebsack, Iowa Virginia Foxx, North Carolina
Mazie Hirono, Hawaii John R. ``Randy'' Kuhl, Jr., New
Jason Altmire, Pennsylvania York
John A. Yarmuth, Kentucky Rob Bishop, Utah
Phil Hare, Illinois David Davis, Tennessee
Yvette D. Clarke, New York Timothy Walberg, Michigan
Joe Courtney, Connecticut [Vacancy]
Carol Shea-Porter, New Hampshire
Mark Zuckerman, Staff Director
Vic Klatt, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
LYNN C. WOOLSEY, California, Chairwoman
Donald M. Payne, New Jersey Joe Wilson, South Carolina,
Timothy H. Bishop, New York Ranking Minority Member
Carol Shea-Porter, New Hampshire Tom Price, Georgia
Phil Hare, Illinois John Kline, Minnesota
C O N T E N T S
----------
Page
Hearing held on April 10, 2008................................... 1
Statement of Members:
Wilson, Hon. Joe, ranking minority member, Subcommittee on
Workforce Protections...................................... 5
Prepared statement of.................................... 7
Additional submissions:
Federal Register, 29 CFR Part 825, Family and Medical
Leave Act Regulations: A Report on the Department
of Labor's Request for Information; Proposed Rule,
Internet address................................... 65
DOL's proposed rules change in the FMLA, dated
February 11, 2008, Internet address................ 65
Statement of the National Business Group on Health... 69
Statement of the National Coalition to Protect Family
Leave.............................................. 72
Statement of the Retail Industry Leaders Association. 75
Letter, dated April 11, 2008, from the Society for
Human Resource Management to the Department of
Labor, Internet address............................ 76
Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 4
Additional submissions:
Letter from the American Association of University
Women, dated April 8, 2008......................... 66
Statement of Witnesses:
Cossette, Brenda, human resources director, on behalf of the
Society for Human Resource Management...................... 41
Prepared statement of.................................... 43
Hunt, Jennifer, flight attendant............................. 36
Prepared statement of.................................... 38
Lasco, Chante, new mother.................................... 33
Prepared statement of.................................... 34
Lipnic, Victoria, Assistant Secretary for Employment
Standards, U.S. Department of Labor........................ 8
Prepared statement of.................................... 9
Ness, Debra, president, National Partnership for Women and
Families................................................... 46
Prepared statement of.................................... 49
Schroeder, Hon. Patricia S., president & chief executive
officer, Association of American Publishers, former Member
of Congress................................................ 30
Prepared statement of.................................... 32
THE 15TH ANNIVERSARY OF THE
FAMILY MEDICAL LEAVE ACT:
ACHIEVEMENTS AND NEXT STEPS
----------
Thursday, April 10, 2008
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and Labor
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:01 a.m., in
Room 2175, Rayburn House Office Building, Hon. Lynn Woolsey
[chairwoman of the subcommittee] presiding.
Present: Representatives Woolsey, Payne, Bishop, Shea-
Porter, Hare, McKeon, Wilson, and Kline.
Staff present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Jody Calemine, Labor Policy Deputy
Director; Lynn Dondis, Senior Policy Advisor for Subcommittee
on Workforce Protections; Danielle Lee, Press/Outreach
Assistant; Sara Lonardo, Junior Legislative Associate, Labor;
Joe Novotny, Chief Clerk; Michele Varnhagen, Labor Policy
Director; Mark Zuckerman, Staff Director; Cameron Coursen,
Minority Assistant Communications Director; Ed Gilroy, Minority
Director of Workforce Policy; Rob Gregg, Minority Senior
Legislative Assistant; Alexa Marrero, Minority Communications
Director; Jim Paretti, Minority Workforce Policy Counsel; Molly
McLaughlin Salmi, Minority Deputy Director of Workforce Policy;
Hannah Snoke, Minority Legislative Assistant; and Linda
Stevens, Minority Chief Clerk/Assistant to the General Counsel.
Chairwoman Woolsey [presiding]. A quorum is present. The
hearing of the Workforce Protection Subcommittee on the 15th
anniversary of the Family and Medical Leave Act achievements
and next steps will come to order.
Pursuant to Committee Rule 12(a), any member may submit an
opening statement in writing, which will be made part of the
permanent record.
And I now recognize myself, followed by Ranking Member Joe
Wilson, for opening statements.
I want to thank everybody for coming today and attending
this hearing on the 15th anniversary of the Family and Medical
Leave Act that we will call FMLA. This legislation establishes
a minimum labor protection to help working people balance their
work and their family lives.
FMLA had been in the works for many years and had been
before it was passed, and I am delighted that Representative
Pat Schroeder, the mother of FMLA, is able to be here today to
testify before us.
Welcome, Pat.
There is no question, Representative Schroeder, that you
worked tirelessly on this benefit for working families, so we
all know that your testimony is going to bring us up to date of
where we have been and where we have yet to go.
The USA should be a leader in the world on these matters,
our United States of America. Funny, we are not quite, we are
not close, but we have a lot of work to do. But, at the current
time, because we lag far behind other countries in providing
family-friendly policies, such as paid leave, to our workers,
we need to catch up, and we need to catch up fast.
However, in the 15 years since FMLA was passed, there has
been some good news. Millions of workers have been able to
utilize leave to care for the birth or adoption of a child--I
hear that one over there--or to care for a sick child, or a
sick parent, or to care for their own serious medical
condition. Chante Lasco will testify today about her leave, why
it was good, and how it could have been better. There are also
many good employers, although not nearly enough, in this
country who realize that family-friendly policies actually
help, not hurt, their bottom lines.
And just this year, on a bipartisan basis, we passed the
first-ever expansion of FMLA, and I am really proud to say that
the expansion is the result of legislation introduced by
Senator Clinton and Senator Dodd and myself to provide
additional leave for workers to care for seriously injured
service members. The genesis of this legislation was the
Wounded Warriors Commission chaired by Secretary Donna Shalala
and Senator Bob Dole.
The Commission recommended an expansion to FMLA because it
understood that workers with family members in the military
face additional challenges due to the conflicts in Iraq and
Afghanistan, which have resulted--and we know that--in over
4,000 deaths and more than 30,000 injuries, with many service
members being seriously, seriously injured--mentally and
physically.
The new expansion provides these workers job-protected
leave for up to 6 months so they can care for their wounded
family member who have, as we know, sacrificed so much for this
country of ours. This is important because, for the first time,
family members other than the spouse, parent, or child can take
off leave under the Family and Medical Leave Act.
In addition, the law also incorporates an important
provision authored by Representatives Altmire and Tom Udall
from the House that extends the 12 weeks of leave to families
of service members who are deployed overseas for matters
arising from their deployment.
Many members of the House and Senate are submitting
comments to the Department of Labor on how to implement this
expansion to FMLA.
Assistant Secretary Lipnic is here today, and I have to
welcome you back because--Secretary Lipnic actually was a staff
person working for Leader John Boehner when he was the Chair of
this committee, and this is her first time being on that side
of the table. So we will be kind of nice to you. And I am sure
Joe really will. And we all will because this is a really nice
committee. But we welcome you. [Laughter.]
But, at the same time, we hope that you and the department
will heed our suggestions to interpret the law in the broadest
possible way so that it can be administered as intended
because, although we are pleased to be expanding the military
families' leave, work on behalf of all working families is far,
far from completed.
More employers need to step up to the plate, and we need to
enact other workforce protections that establish our country as
a leader in this arena. This includes passing legislation
providing for paid sick days, paid leave, equal pay for women,
and other necessary benefits for working families, so they can
bridge work and family, not have to choose where their
allegiance is, at home or at work. They need not to make that
choice, they need to be in both places, and we need to help
them.
That is why I have introduced the Balancing Act, which puts
into place a whole host of family-friendly policies, such as
paid family medical leave, benefits for part-time workers, and
additional leave for parental involvement activities, including
attending to routine medical matters.
Senator Kennedy and Representative DeLauro have introduced
the Healthy Families Act, which will provide workers with 7
days of paid sick leave to care for their own medical needs or
the needs of a family member.
That is why Representative Bishop, a valued member of this
subcommittee, along with Senator Clinton, has introduced H.R.
2744, The Airline Flight Crew Technical Corrections Act, which
amends FMLA to make flight attendants and crew members eligible
for FMLA if they have worked 60 percent of the employer's
monthly hour or trip guarantee.
I am pleased that Jennifer Hunt, a flight attendant, is
here to testify in that regard today. By telling her story, she
will show us that it is very important to provide job-protected
leave to others in her same position.
Lastly, let me say just a few words about the Department of
Labor's proposed regulations to the FMLA. I was disappointed
that without scientifically sound data, the department is
proposing changes that will make it somewhat harder, if not a
lot harder, on the workers and make it harder for them to
utilize FMLA leave.
I was a human resources manager--and I will remind you of
that throughout this hearing--for nearly 2 decades, and I know
all about the issues that come up when workers need time off
from work to care for family matters.
Over those years, it became very clear to me and the
employers I worked for that it was important to help workers
with these issues because we knew that when a worker's family
life was in order, he or she was a much more committed, loyal,
and focused employee.
So it was in the best interest of my companies, the ones I
worked for, to give workers the leave that they needed, and
these proposed regulations are a bit disturbing to me because
they shift that balance more in favor of the employer than it
was in the past.
So, unlike the Fair Labor Standards Act, from which the
FMLA was modeled, these proposed changes will allow a worker to
waive his or her rights under FMLA without the supervision of a
court or the Department of Labor, and they will create more
hoops for the worker to jump through in order to utilize a
right to leave that is already enshrined in law.
Notice will have to be immediate and contain detailed
information about the need for leave and, under the proposed
rules, an employer--and not the employer's doctor--could talk
directly to the health care provider about the worker's medical
condition or the worker could be denied leave.
So these are just a few of the problems with the proposed
rules. I, and other members, look forward to hearing from
Assistant Secretary Lipnic on why the delicate balance that we
have been able to achieve for 15 years needs to be upset at
this particular time, when really what we need to do is be
expanding FMLA and making it more positive for the workers.
We are looking for fairness, we are not looking for
obstacles for workers, and we are here today to talk about
that, and I am looking forward to hearing from all of you and
to have the discussion that we need to have in this regard.
And now I yield to Ranking Member Joe Wilson.
[The statement of Ms. Woolsey follows:]
Prepared Statement of Hon. Lynn C. Woolsey, Chairwoman, Subcommittee on
Workforce Protections
I want to thank everyone for attending this hearing on 15th
anniversary of the Family and Medical
Leave Act, legislation that establishes a minimum labor protection
to help working people balance their work and family lives. FMLA had
been in the works for many years before it was passed, and I am so
delighted that
Representative Pat Schroeder, the ``mother'' of the FMLA, is able
to be here to testify today. Welcome, Representative Schroeder. You
worked tirelessly to pass this benefit for working families. And, as
such, you and others testifying here today know how far we have come,
and yet how far we have to go. The U.S.A. should be a leader in the
world on these matters. But, at the current time, we lag far behind
other countries in providing ``family-friendly policies'', such as paid
leave, to our workers. We need to catch up, and catch up fast. However,
in the 15 years since FMLA was passed, there has been good news!
Millions of workers have been able to utilize leave to care for the
birth or adoption of a child, to care for a sick child or parent, or to
care for their own serious medical condition. Chante Lasco will testify
about her leave, why it was good and how it could have been better.
There are also many good employers -although not nearly enough -in this
country who realize that ``family-friendly policies'' actually help,
not hurt their bottom line.
I am proud to say that the expansion is the result of legislation
introduced by Senators Clinton and Dodd and myself to provide
additional leave for workers to care for seriously injured
servicemembers.
The genesis of this legislation was the Wounded Warriors Commission
chaired by Secretary Donna Shalala and Senator Bob Dole.
The Commission recommended an expansion to FMLA because it
understood that workers with family members in the military face
additional challenges due to the conflicts in Iraq and Afghanistan,
which have resulted in over 4,000 deaths and more than 30,000 injuries,
with many servicemembers being seriously injured.
The new expansion provides these workers job-protected leave for up
to 6 months so they can care for the servicemembers who have sacrificed
so much for this country. This is important because, for the first,
family members other than the spouse, parent, or child can take off
leave under the FMLA.
In addition, the law also incorporates an important provision
authored by Representatives Altmire and Tom Udall that extends the 12
weeks of leave to families of servicemembers who are deployed overseas
for matters arising from the deployment.
Many members of the House and Senate are submitting comments to the
Department of Labor on how to implement this expansion to the FMLA.
Assistant Secretary Lipnic, I appreciate your coming today, and I
hope that the Department will heed our suggestions to interpret the law
in the broadest possible way so it can be administered as we intended.
We are pleased that we were able to expand leave for military
families, but of course our work on behalf of all working families is
far from done.
More employers need to step up to the plate, and we need to enact
other workforce protections that establish our country as a leader in
this arena.
This includes passing legislation providing for paid sick days,
paid leave, equal pay for women and other necessary benefits for
working families, so they can bridge work and family.
That is why I have introduced the Balancing Act, which puts into
place a whole host of ``familyfriendly'' policies, such as paid family
medical leave, benefits for part-time workers, and additional leave for
parental involvement activities, including attending to routine medical
matters.
Senator Kennedy and Representative DeLauro have introduced the
Healthy Families Act, which will provide workers with 7 days of paid
sick leave to care for their own medical needs or the needs of a family
member.
And that is why Representative Bishop, a valued member of our
Subcommittee, along with Senator Clinton, has introduced H.R. 2744, The
Airline Flight Crew Technical Corrections Act, which amends FMLA to
make flight attendants or crew members eligible for FMLA if they have
worked 60% of the employer's monthly hour or trip guarantee.
I am pleased that Jennifer Hunt, a flight attendant, is testifying
today.
By telling her story, she will show us that it is very important to
provide job-protected leave to others in her same position.
Lastly, let me just say a few words about the Department of Labor's
proposed regulations to the FMLA.
I was very disappointed that without scientifically sound data, the
Department is proposing changes that will make it harder not easier for
workers to utilize FMLA leave.
I was a human resource manager for nearly 2 decades, and I know all
about the issues that come up when workers need time off from work to
take care of family matters.
I found that it was important to help workers with these issues
because I knew that when a worker's family life was in order, he or she
was a better and more committed employee.
So it was in the best interest of my Company to give workers the
leave they needed.
The proposed regulations disturb me precisely because they shift
that balance in favor of the employer.
Unlike the Fair Labor Standards Act, from which the FMLA was
modeled, these proposed changes will allow a worker to waive his or her
rights under the FMLA leave without the supervision of a court or the
Department of Labor.
And they will create more hoops for the worker to jump through in
order to utilize a right to leave that is already enshrined in law.
Notice will have to be immediate and contain detailed information
about the need for leave.
And under the proposed rules, an employer -and not the employer's
doctor -could talk directly to the health care provider about the
worker's medical condition or the worker could be denied leave.
These are just a few of the problems with the proposed rules, and I
and other members look forward to hearing from Assistant Secretary
Lipnic on why the delicate balance that we have been able to achieve
for 15 years needs to be upset at this particular time.
This is not fairness, just another obstacle to a worker being able
to assert his or her right.
______
Mr. Wilson. Thank you, Madam Chairwoman.
And we are all delighted to have you return from your back
surgery.
Chairwoman Woolsey. Thank you.
Mr. Wilson. We all wish you a speedy and complete recovery.
Chairwoman Woolsey. Thank you.
Mr. Wilson. I, too, would like to extend a warm welcome to
our witnesses, particularly to the employees who will appear on
the second panel. I look forward to hearing their testimony.
Medical leave has special meaning to me today. As I was
arriving, I received a phone call from my oldest son, Alan. He
is taking his wife, Jennifer Miskewicz Wilson, on the way to
Lexington Medical Center, as we speak, for the delivery of
their first son, Michael McCrory Wilson, and so this is an
exciting time for our family.
My daughter-in-law, Jennifer Miskewicz Wilson, is much
better known in the community than I am. She is a newscaster at
the largest television station in South Carolina, a very
humbling experience, and I do note that the company she works
for has been very family friendly, following the law but even
more. So it is an exciting day as we discuss this issue.
As you noted, Madam Chair, this past February marked the
15-year anniversary of the Family and Medical Leave Act,
legislation that has made a significant difference in the lives
of millions of working Americans. The FMLA has provided
countless numbers of workers and their families with job
security and some peace of mind during critical times.
Americans have used family and medical leave to care for
the arrival of a newborn or adopted child or to tend to a
parent's or child's serious illness. Still others, who have
struggled with health problems or those of family members, have
been able to tend to critical medical needs while holding on to
their jobs, benefits, and some measure of economic security.
In fact, many employers go far beyond the requirements of
the law, to ensure their employees have benefits above and
beyond what is required under federal or state law.
It is my impression we will certainly hear firsthand from
our witnesses that the law is working in the vast majority of
cases the way Congress intended for it to work. But as those of
us who serve in Congress know, things do not always end up
working the way they were meant to work. Even with the best of
intentions, there can be unintended consequences and problems
that were not fully anticipated.
Despite the fact that the law has worked well for millions
of workers, the FMLA is not without controversy among the
employer community, worker advocates, and within the courts. It
is well documented that certain provisions of the FMLA have
created ambiguity and confusion over the years, benefitting
neither workers nor their employers. In that regard, I would
suggest that the administration has taken a step forward, not
backward as some have claimed, to update the regulations to
reflect and account for court rulings and statutory and
regulatory developments that have impacted the functioning of
the FMLA.
In particular, I would like to commend the Department of
Labor for moving expeditiously on regulations to implement the
newly enacted military family leave. Military families of
military service members will now have one less burden, thanks
to the first-ever expansion of FMLA, signed into law by
President Bush in January of this year.
As a 31-year veteran of the Army National Guard and the
proud father of four sons who are currently serving in the
military--two have served in Iraq--I am sensitive to the daily
challenges faced by our military families. Indeed, no one in
this room could find a more worthy goal than ensuring workers
are not forced to choose between their job and caring for an
injured family member who has served his or her country.
As part of its package of proposed rules, the department
has asked for public comments on issues related to the new
military leave provisions. With respect to the military leave
provisions that took effect upon enactment in January, I would
note the department has moved quickly to issue guidance to
employees and employers regarding their rights and obligations.
We welcome their efforts.
With that, I look forward to hearing the testimony from our
witnesses and yield back the balance of my time.
[The statement of Mr. Wilson follows:]
Prepared Statement of Hon. Joe Wilson, Ranking Republican Member,
Subcommittee on Workforce Protections
Thank you, Madam Chairwoman. I too would like to extend a warm
welcome to our witnesses, particularly to the employees who will appear
on the second panel. I look forward to hearing their testimony.
As you noted, Madam Chair, this past February marked the fifteen-
year anniversary of the Family and Medical Leave Act, legislation that
has made a significant difference in the lives of millions of working
Americans. The FMLA has provided countless numbers of workers and their
families with job security and some peace of mind during critical
times.
Americans have used family and medical leave to care for the
arrival of a newborn or adopted child, or to tend to a parent or
child's serious illness. Still others, who have struggled with health
problems or those of family members, have been able to tend to critical
medical needs while holding on to their jobs, benefits and some measure
of economic security. In fact, many employers go far beyond the
requirements of the law, to ensure that their employees have benefits
above and beyond what is required under federal or state law.
It's my impression, and we will certainly hear firsthand from our
witnesses, that the law is working in the vast majority of cases, the
way Congress intended for it to work. But as those of us who serve--or
have served--in Congress know, things don't always end up working the
way they were meant to work. Even with the best of intentions, there
can be unintended consequences and problems that were not fully
anticipated.
Despite the fact that the law has worked well for millions of
workers, the FMLA is not without controversy among the employer
community, worker advocates, and within the courts. It is well-
documented that certain provisions in the FMLA have created ambiguity
and confusion over the years, benefitting neither workers nor their
employers. In that regard, I would suggest that the Administration has
taken a step forward--not backward as some have claimed--to update the
regulations to reflect and account for court rulings and statutory and
regulatory developments that have impacted the functioning of the FMLA.
In particular, I would like to commend the Department of Labor for
moving expeditiously on regulations to implement the recently-enacted
military family leave. Working families of military servicemembers will
now have one less burden, thanks to the first-ever expansion of the
FMLA, signed into law by President Bush in January of this year.
As a 31 year veteran of the Army National Guard and the proud
father of four sons currently serving in the military, I am sensitive
to the daily challenges faced by military families. Indeed no one in
this room could find a more worthy goal than ensuring workers are not
forced to choose between their job and caring for an injured family
member who has served his or her country.
As part of its package of proposed rules, the Department has asked
for public comments on issues related to the new military leave
provisions. With respect to the military leave provisions that took
effect upon enactment in January, I would note the Department has moved
quickly to issue guidance to employees and employers regarding their
rights and obligations. We welcome their efforts.
With that, I look forward to hearing the testimony from our
witnesses and yield back the balance of my time.
______
Chairwoman Woolsey. Thank you, Mr. Wilson.
First of all, I would like to congratulate you on the
upcoming birth of a new Scots kid.
Mr. Wilson. Scots-Polish.
Chairwoman Woolsey. Well, all right, but another Wilson can
only be positive for your district and for this country. So
congratulations to you.
For those of you who have not testified before us before,
let me explain the lighting system. We have a 5-minute rule.
Everyone, including members, is limited to 5 minutes of
presentation and/or questioning. The green light is illuminated
when you begin to speak. When you see the yellow light, it
means you have 1 minute remaining. When you see the red light,
it means your time has expired, and you need to conclude your
testimony. We do not cut people off mid-sentence. You can be
sure of that.
And now we will be proud to hear from our first witness,
Assistant Secretary Victoria Lipnic. Assistant Secretary Lipnic
is the Assistant Secretary of Labor for employment standards
and has served in that position since the year 2002.
Prior to her appointment, she served as workforce policy
counsel for this committee from the year 2000 to 2002. Before
that, she was in-house counsel to the U.S. Postal Service,
serving in that role from 1994 to 2000. From 1988 to 1989,
Assistant Secretary Lipnic was a special assistant to the
Assistant Secretary for Trade Development at the International
Trade Administration, and from 1984 to 1988, she served on the
U.S. Secretary of Commerce's staff. Assistant Secretary Lipnic
earned her BA in political science and history from Allegheny
College in Pennsylvania and her JD from George Mason University
School of Law.
Welcome, Assistant Secretary Lipnic, and, as I said, be
comfortable on that side of the table because we are good
people up here.
STATEMENT OF VICTORIA LIPNIC, ASSISTANT SECRETARY FOR
EMPLOYMENT STANDARDS, U.S. DEPARTMENT OF LABOR
Ms. Lipnic. Thank you very much, Madam Chairwoman. Good
morning. And I am so pleased to know that alumni status has its
privileges with the committee.
Chairwoman Woolsey, Ranking Member Wilson, members of the
committee, thank you for inviting me here today to testify
about the Department of Labor's 15 years of experience in
administering the Family and Medical Leave Act and to discuss
the department's proposals issued earlier this year in February
to revise the regulations under the FMLA. It is a pleasure to
be with you.
In the time allotted, I thought I would summarize my
testimony, and then I am happy to take your questions, and I
would ask to have my full written testimony included in the
record.
Chairwoman Woolsey. Without objection.
[The statement of Ms. Lipnic follows:]
Prepared Statement of Victoria Lipnic, Assistant Secretary for
Employment Standards, U.S. Department of Labor
Good morning, Chairwoman Woolsey, Ranking Member Wilson, and
Members of the Subcommittee. I am pleased to testify today about the
Department of Labor's experiences in administering the Family and
Medical Leave Act of 1993 (FMLA) and our recently published Notice of
Proposed Rulemaking (NPRM). The FMLA provides America's working
families with the ability to take job-protected leave for the birth or
adoption of a child, because of one's own, or a family member's,
serious health condition, and, only recently--in the case of military
families--to care for our wounded warriors and to address qualifying
exigencies arising from deployment. The recent expansion of the law to
provide military family leave, along with the experience gained from
fifteen years of enforcing the rights of workers to take job-protected
leave and case law developments during this time, requires that the
Department update its regulations to ensure the FMLA continues to work
as well as possible.
When, on January 28, 2008, President Bush signed a bill to provide
additional leave entitlements to military families, the Department
fast-tracked publication of a proposal to implement these important new
leave entitlements. The Department published its proposal in the
Federal Register on February 11, 2008. A copy of the proposal is
available at www.dol.gov/esa/whd and at www.regulations.gov.
The Department takes its commitment to servicemembers and their
families very seriously, and because one of the provisions providing
additional FMLA leave protection for military families cannot go into
effect until the Secretary of Labor defines certain terms by
regulation, we believe it is important to address those provisions
completely and expeditiously. We have already reached out to the
Departments of Defense and Veterans Affairs, as well as groups
representing servicemembers and their families, to obtain their input.
Our proposal will allow us to finalize these regulations as quickly as
possible, thus ensuring that military servicemembers and their families
receive the full protection of the FMLA when they need it most.
The Department's proposal is also another step in what has been an
open and transparent process of reviewing the current FMLA regulations.
Although there is broad consensus that the FMLA is valuable for workers
and their families, there are a number of issues that workers,
employers, and health care professionals have identified as needing to
be updated in order to make the law work better for everyone. This
should be expected as it has been almost 15 years since the
Department's first interim final rule implementing the FMLA went into
effect. Much has happened since then--numerous court rulings examining
the Act and implementing regulations, and statutory and regulatory
developments, such as passage of the Health Insurance Portability and
Accountability Act (HIPAA) that directly or indirectly impact
administration of the FMLA.
Background
By way of background, the FMLA generally covers employers with 50
or more employees. Employees must have worked for the employer for 12
months and have 1,250 hours of service during the previous year to be
eligible for leave. As enacted in 1993, the FMLA permits eligible
employees to take up to a total of 12 weeks of unpaid leave during a
12-month period for: (1) the birth of a son or daughter and to care for
the newborn child; (2) placement with the employee of a son or daughter
for adoption or foster care; (3) care for a spouse, parent, son or
daughter with a serious health condition; and (4) a serious health
condition that makes the employee unable to perform the functions of
the employee's job. Recent amendments provide for taking FMLA leave to
care for a covered servicemember with a serious injury or illness
incurred in the line of duty and because of qualifying exigencies
arising out of a servicemember's active duty or call to active duty
status.
Employees may take FMLA leave in a block or, under certain
circumstances, intermittently or on a reduced leave schedule. While the
employee is on leave, the employer must maintain any preexisting group
health coverage and, once the leave is over, reinstate the employee to
the same or an equivalent job with equivalent employment benefits, pay,
and other terms and conditions of employment. An employee who believes
that his or her FMLA rights were violated may file a complaint with the
Department or file a private lawsuit in federal or state court. If a
violation is found, the employee may be entitled to reimbursement for
monetary loss incurred, equitable relief as appropriate, interest,
attorneys' fees, expert witness fees, court costs, and liquidated
damages.
To implement the FMLA, the Department initially issued an interim
final regulation that became effective on August 5, 1993. Except for
minor technical corrections in February and March 1995, the
Department's FMLA regulations have not been updated since final
regulations were published on January 6, 1995. Over the last several
years, the Department has engaged in a thorough and deliberative review
of the current FMLA regulations, taking into account both the
Department's experience in administering and enforcing the FMLA and
developing case law.
The Department hosted a series of stakeholder meetings in late 2003
and 2004. In December 2006, the Department issued a Request for
Information (RFI) seeking comment on the public's experiences with the
FMLA and the Department's regulations. In response to the RFI, the
Department received more than 15,000 comments from workers, family
members, employers, academics, and other interested parties. Many of
the comments were brief emails with very personal accounts from
employees who had used family or medical leave; others were highly
detailed and substantive legal or economic analyses responding to the
specific questions in the RFI and raising other complex issues.
After reviewing all the public comments in response to the RFI, the
Department published a report in June 2007.\1\ The RFI Report concluded
that the FMLA is generally working well in the majority of cases. The
FMLA has succeeded in allowing working parents to take leave for the
birth or adoption of a child, and in allowing employees to be absent
for blocks of time while they recover from their own serious health
condition or care for family members recovering from serious health
conditions. The FMLA also seems to be working fairly well when
employees are absent for scheduled treatments related to their own or a
family member's serious health condition.
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\1\ A copy of the RFI Report, as well as access to the public
comments and RFI, are available at http://www.dol.gov/esa/whd/
Fmla2007Report.htm and at www.regulations.gov.
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However, the Department also learned that the FMLA, like any new
law, has had some unexpected consequences. While employees often
expressed a desire for greater leave entitlements, employers often
expressed frustration about difficulties in maintaining necessary
staffing levels and managing attendance in their workplaces,
particularly when employees take leave on an unscheduled basis with no
advance notice. For example, the RFI Report indicated that time-
sensitive industries, such as transportation operations (including
local school bus systems), public health and safety operations
(including hospitals, nursing homes, and emergency 911 services), and
assembly-line manufacturers may be especially impacted by employees
taking unscheduled, intermittent FMLA leave. Although taking FMLA leave
intermittently is a statutory right, there is clear evidence that the
use of intermittent leave disproportionately affects these types of
industries.
The Department also learned from the RFI and a subsequent
stakeholder meeting held in September 2007 with employee, employer, and
health care representatives that the current medical certification
process is not working as smoothly as all involved would like.
Employers complained about receiving inadequate medical information
from doctors, while employees and health care providers complained that
the Department's certification process was confusing and time-
consuming. It also appears that, despite much work by the Department,
many employees still do not fully understand their rights under the Act
or the procedures they must use when seeking FMLA leave.
These aspects of FMLA can have ripple effects that result in
conflicts and misunderstandings between employees and employers
regarding leave designation and protection. Without action to bring
clarity and predictability for FMLA leave-takers and their employers,
the Department foresees employers and employees taking more adversarial
approaches to leave, with the workers who have a legitimate need for
FMLA leave being hurt the most.
Based on 2005 data--the latest year for which data is available--
the Department estimates that 95.8 million employees work in
establishments covered by the FMLA, and about 77.1 million of these
workers meet the FMLA's requirements for eligibility. Of these eligible
workers, the Department estimates that approximately 7.0 million
workers took FMLA leave in 2005, and about 1.7 million of those leave
takers took some FMLA leave intermittently. About half the workers who
take FMLA leave do so for their own medical condition and the rest take
it for family reasons. Most workers taking FMLA leave receive some pay
during their longest period of leave, and many receive full pay during
the period they are on leave.
Although there are areas where the Department believes more data
would be useful (e.g., the number of workers who have medical
certifications for chronic health conditions), the targeted updates in
the proposed rule are well-supported by the available data and case law
developments and reflect recommendations made by stakeholders who have
day-to-day experience with the FMLA. This experience is from the
perspective of both leave takers and employers who must manage the
taking of leave. The Department also is fully aware that its proposal
does not address all of the issues identified during its lengthy review
of the FMLA. The Department believes that its proposal will allow the
FMLA to function more smoothly for America's working families and their
employers.
Turning to the specifics of the proposed rule, I want to reiterate
that there is no question that the FMLA has been a benefit to millions
of American workers and their families. The peace of mind that the FMLA
brings to workers and their families as they face important and often
stressful situations is invaluable. The Department's proposed
rulemaking reflects this need. It has four main goals:
To address the recently enacted military family leave
provisions;
To update the regulations to comport with current case
law;
To foster smoother communications among employees,
employers, and health care professionals; and
To update and clarify specific, problematic areas of the
current FMLA regulations without limiting employee access to FMLA
leave.
Regulatory Proposals to Implement the Military Family Leave Provisions
Section 585(a) of the National Defense Authorization Act for FY
2008 amended the FMLA to provide leave to eligible employees of covered
employers to care for covered servicemembers and because of any
qualifying exigency arising out of the fact that a covered family
member is on active duty or has been notified of an impending call to
active duty status in support of a contingency operation (collectively
referred to herein as the military family leave provisions of P.L. 110-
181). Although the provisions of P.L. 110-181 providing FMLA leave to
care for a covered servicemember became effective on January 28, 2008,
when signed into law by President Bush, the provisions providing for
FMLA leave due to a qualifying exigency arising out of a covered family
member's active duty (or call to active duty) status are not effective,
in our view, until the Secretary of Labor issues regulations defining
``qualifying exigencies.''
The Department's commitment to ensuring the FMLA works well for
everyone, including for military family members, is clearly
demonstrated by the Department publishing its proposed rulemaking to
implement the new military family leave entitlements just 14 days after
the provisions were signed into law. The Department's proposal includes
an extensive discussion of the relevant military family leave statutory
provisions and the issues the Department has identified, as well as a
series of questions seeking comment on subjects and issues that may be
considered in the final regulations. Even before P.L. 110-181 was
enacted, the Department began preliminary consultations with the
Departments of Defense and Veterans Affairs and the U.S. Office of
Personnel Management. OPM will administer similar provisions regarding
leave to care for a covered servicemember for most Federal employees,
except that the recent amendments to the FMLA do not authorize leave
for family members of Federal employees to respond to a qualifying
exigency relating to a family member's call to active duty status. The
Department also has met with the National Military Families Association
and a number of other military service organizations representing
active duty, guard, and reserve servicemembers to discuss their views
on the new military leave entitlements. As we explained in the NPRM,
the Department anticipates that the next step in the rulemaking
process, after full consideration of the comments received, will be the
issuance of final regulations. The Department believes that this
approach will allow it to ensure that America's military families
receive the full protections of these new FMLA leave entitlements as
soon as possible.
In the interim, the Department acted quickly to advise workers and
employers of their rights and responsibilities under the new military
family leave provisions. Because the statutory amendments did not
provide an effective date, the day President Bush signed the National
Defense Authorization Act of 2008 into law, the Department posted a
notice on its website stating that the provisions in P.L 110-181
providing for military caregiver leave were effective immediately.
Further, because P.L 110-181 amended the FMLA, the notice instructed
employers to use FMLA-type procedures as appropriate (i.e., procedures
regarding the substitution of paid leave and notice), until final
regulations could be issued. While recognizing that the provisions of
P.L 110-181 providing for leave because of ``any qualifying exigency''
are not effective until final regulations are issued, the Department
encouraged employers to provide this type of leave to qualifying
employees immediately. Accordingly, thousands of military family
members are currently eligible to take job-protected leave under the
FMLA to care for a covered servicemember with a serious injury or
illness, and others are being granted leave arising out of a family
member's active duty status by their employers on a voluntary basis.
Congress's decision to incorporate the new military family leave
entitlements into the existing FMLA statutory scheme, rather than as a
separate leave entitlement, necessitates that the Department consider
changes to the FMLA regulations as a whole. Indeed, the language of the
enacting legislation raises a number of difficult issues regarding how
the new military family leave provisions should be interpreted in light
of existing FMLA regulations. For example, statements by the sponsoring
House Members of the amendment related to ``qualifying exigencies'' in
P.L. 110-181 suggest that the intent of the amendment was that the
parents of adult children be permitted to take FMLA leave, for
instance, to attend farewell or welcome home ceremonies. However,
applying the current FMLA definition of ``son or daughter''--which
Congress did not change when implementing the military family leave
provisions--would mean that the only parents who would be able to take
FMLA leave because of a qualifying exigency would be those who have a
son or daughter serving on active duty who is either under the age of
18 or older than age 18 and incapable of self-care because of a mental
or physical disability. Similarly, because Congress provided that
military caregiver leave was available to the ``spouse, son, daughter,
parent, or next of kin of a covered service member,'' the only sons or
daughters who would be eligible to take FMLA leave to care for a
seriously injured servicemember under the current FMLA regulatory
framework would be those who are under the age of 18 or age 18 or older
and incapable of selfcare because of a mental or physical disability.
Other examples of the awkward interrelationship between the current
FMLA regulations and the new military family leave provisions exist.
For example, the military family leave provisions of P.L. 110-181
amended FMLA's certification requirements to permit an employer to
request that leave taken to care for a covered servicemember be
supported by a medical certification. FMLA's certification
requirements, however, focus on providing information related to a
serious health condition--a term that is not relevant to leave taken to
care for a covered servicemember. Moreover, Congress did not explicitly
require in P.L. 110-181 that a sufficient certification for purposes of
military caregiver leave provide information regarding whether the
covered servicemember's serious injury or illness was incurred by the
member in the line of duty while on active duty in the Armed Forces, or
whether the serious injury or illness may render the member medically
unfit to perform the duties of the member's office, grade, rank, or
rating, even though those criteria trigger in part the right to take
FMLA leave to care for a covered servicemember. Furthermore, the FMLA
provides that an employer may request a medical certification issued by
the health care provider of the employee's son, daughter, spouse, or
parent in order to support a request for FMLA leave to care for a
child, spouse, or parent with a serious health condition (29 U.S.C.
2613). Although the leave entitlement provisions of P.L. 110-181 permit
an eligible employee who is the next of kin of a covered servicemember
to take military family leave, P.L. 110-181 certification requirements
appear to permit an employer to obtain a certification issued by the
health care provider of the employee's next of kin, rather than the
covered servicemember.
These are not easy questions to answer, and they present a number
of drafting challenges to meet the needs of military families they were
designed to address. The Department raised all of these issues in its
NPRM on February 11, 2008 (73 FR 7876). Now that the record is about to
close for the rulemaking, we look forward to the input we expect to
receive from the regulated community and public as to how to make these
new entitlements work within the underlying FMLA regulations as
Congress intended (just as we received many thoughtful comments in
response to our Request for Information). Given the difficult choices
that must be made regarding how to interpret the military family leave
statutory provisions, the Department believes that its approach
provides the fastest mechanism for these new leave entitlements to be
fully implemented. Addressing these important questions regarding the
military family leave provisions along with other needed updates to the
FMLA regulations will allow the Department to integrate fully the
military family leave entitlements with the procedures employees and
employers follow for requesting and granting other types of FMLA leave.
This approach makes sense for both employees and employers, neither of
whom would be served by having to follow completely different rules
depending on the type of FMLA leave requested. Importantly, no military
family can be denied caregiver leave during the rulemaking process as
those provisions are already in effect.
Regulatory Proposals to Address Intervening Court Decisions
Since the enactment of the FMLA, hundreds of reported federal cases
have addressed the Act or the Department's implementing regulations. In
many cases, these decisions have created uncertainty for employees and
employers, particularly those with multi-state operations. The
Department anticipates that our proposed rule will bring clarity to
these issues and reduce uncertainty for all parties.
The most significant of these decisions is the U.S. Supreme Court's
decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002).
Ragsdale ruled that the ``categorical'' penalty for failure to
appropriately designate FMLA leave under the current regulations was
inconsistent with the statutory entitlement to only 12 weeks of FMLA
leave, and was contrary to the statute's remedial requirement to
demonstrate individual harm. Several other courts have invalidated
similar categorical penalty provisions of the current regulations. The
proposed rule removes these categorical penalty provisions, while
making clear that an employee who suffers individualized harm because
of an employer's actions remains entitled to a remedy under the
statute.
The Department also is proposing changes to address a court of
appeals ruling that the regulation that establishes standards for
determining whether an employer employs 50 employees within 75 miles of
an employee's worksite for purposes of FMLA coverage (the 50/75
standard) was arbitrary and capricious as applied to an employee
working at a secondary employer's long-term fixed worksite. See Harbert
v. Healthcare Services Group, Inc., 391 F.3d 1140 (10th Cir. 2004). The
current regulation provides that, when two or more employers jointly
employ a worker, the employee's worksite is the primary employer's
office from which the employee is assigned or reports. The Department
proposes to change the standard for determining the worksite for FMLA
coverage purposes in a joint employment situation from the primary
employer's location in all cases to the actual physical place where the
employee works, if the employee is stationed at a fixed worksite for at
least a year.
The Department also is proposing to address the possibility of
combining nonconsecutive periods of employment to meet the 12 months of
employment eligibility requirement. In Rucker v. Lee Holding, Co., 471
F.3d 6, 13 (1st Cir. 2006), the First Circuit held that ``the complete
separation of an employee from his or her employer for a period of
[five] years * * * does not prevent the employee from counting earlier
periods of employment toward satisfying the 12-month requirement.''
Based on the Department's experience in administering the FMLA, the
First Circuit's ruling in Rucker, and comments received in response to
the RFI, the Department proposes to provide that, although the 12
months of employment generally need not be consecutive, employment
prior to a break in service of five years or more need not be counted.
Although employers are certainly free to do so, so long as they
uniformly apply their policy. Periods of employment prior to longer
breaks in service also must be counted if the break is occasioned by
the employee's National Guard or Reserve military service, or was
pursuant to a written agreement concerning the employer's intent to
rehire the employee. The Department believes that this approach strikes
an appropriate balance between providing re-employed workers with FMLA
protections and not making the administration of the Act unduly
burdensome for employers.
Many RFI commenters asked the Department to clarify the current
regulation's provision that states, ``[e]mployees cannot waive, nor may
employers induce employees to waive, their rights under FMLA.'' Federal
circuit courts have disagreed as to whether this language means an
employee and employer cannot independently settle past claims for FMLA
violations (e.g., as part of a settlement agreement), as opposed to
meaning that an employee can never waive his/her prospective FMLA leave
rights.\2\
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\2\ Compare Taylor v. Progress Energy, 493 F.3d 454 (4th Cir.
2007), petition for cert. filed, 75 U.S.L.W. 3226 (Oct. 22, 2007) (No.
07-539) with Faris v. Williams WPC-I, Inc., 332 F.3d 316 (5th Cir.
2003).
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The proposed rule clarifies that employees may settle claims based
on past employer conduct. The current regulation's waiver provision was
intended to apply only to the waiver of prospective rights, and the
proposed rule amends the provision to reflect explicitly this
intention. The Department's position has always been that employees and
employers should be permitted to agree to the voluntary settlement of
past claims without having to first obtain the permission or approval
of the Department or a court.
The Department also is proposing to change the current regulatory
requirements regarding the interaction between FMLA leave and light
duty work. At least two courts have interpreted the Department's
current regulation to mean that an employee uses up his or her 12-week
FMLA leave entitlement while working in a light duty assignment.\3\
---------------------------------------------------------------------------
\3\ See Roberts v. Owens-Illinois, Inc., 2004 WL 1087355 (S.D. Ind.
2004); Artis v. Palos Community Hospital, 2004 WL 2125414 (N.D. Ill.
2004).
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These holdings differ from the Department's interpretation of the
current regulation, which provides that, although the time an employee
works in a voluntary light duty position counts against the employee's
FMLA rights to job restoration (i.e., the employee's restoration right
lasts for a cumulative period of 12 weeks of FMLA leave time and light
duty time), the employee's light duty time does not count against his
or her FMLA leave balance.\4\
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\4\ Wage and Hour Opinion Letter FMLA-55 (Mar. 10, 1995).
---------------------------------------------------------------------------
The Department is proposing changes to ensure that employees retain
both their full FMLA leave entitlement and their right to reinstatement
for a full 12 weeks while in a light duty position. If an employee is
voluntarily performing light duty assignment work, the employee is not
on FMLA leave and the employee should not be deprived of future FMLA-
qualifying leave or FMLA job protection while performing such work.
Regulatory Proposals to Foster Better Communication Between Employees,
Employers and Health Care Providers
The comments to the RFI indicate that, despite the extensive
outreach done by the Department over the years and the widespread use
of FMLA leave, gaps in the knowledge about FMLA-related rights and
responsibilities remain. The Department believes that a key component
of making the FMLA a success is effective communication between
employees and employers. However, it appears that many employees still
do not know their rights under the law, how the FMLA applies to their
individual circumstances, or what procedures they need to follow to
request FMLA leave. This lack of understanding may contribute to some
of the problems identified with the medical certification process and
with employers' ability to properly designate and administer FMLA
leave. Accordingly, the Department is proposing a number of changes to
the FMLA's notification and certification processes. These changes are
intended to foster better communication between workers who need FMLA
leave and employers who have legitimate staffing concerns and business
needs.
The proposed rule consolidates all the employer notice requirements
into a ``one-stop'' section of the regulations. The proposal also
imposes increased notice requirements on employers so that employees
will better understand their FMLA rights and the FMLA leave available
to them. The proposal further seeks to improve the accuracy and
completeness of communication by extending the time for employers to
send out eligibility and designation notices from two business days to
five business days.
In addition, the proposal specifies that, if an employer deems a
medical certification to be incomplete or insufficient, the employer
must return it to the employee, specify in writing what information is
lacking, and then give the employee seven calendar days to cure the
deficiency. These changes will help ensure that employees are not
denied leave because they did not understand how much leave they had
available or what additional information their employer needed in order
to approve the request.
The Department also believes that employees must do all they can to
inform their employer as soon as possible when FMLA leave is needed.
The lack of advance notice (e.g., before the employee's shift starts)
for unscheduled absences is one of the biggest disruptions employers
identify as an unintended consequence of the current regulations.
Although the current regulation provides that employees are to provide
notice of the need for FMLA leave ``as soon as practicable under the
facts and circumstances,'' the rule has routinely been interpreted to
allow some employees to provide notice to an employer of the need for
FMLA leave up to two full business days after an absence, even if
notice could have been provided sooner.
The Department proposes to maintain the requirement that an
employee provide notice as soon as practicable under the facts and
circumstances of the particular case, but is eliminating the so-called
``two-day'' rule. Absent an emergency situation, the Department expects
that in cases where an employee becomes aware of the need for
foreseeable FMLA leave less than 30 days in advance, it will be
practicable for employees to provide notice of the need for leave
either on the same or the next business day after the need for leave
becomes known. For unforeseeable leave, the Department expects that, in
all but the most extraordinary circumstances, employees will be able to
provide notice to their employers of the need for leave at least prior
to the start of their shift. The proposal also provides, as does the
language of the current regulation, that an employee needing FMLA leave
must follow the employer's usual and customary call-in procedures for
reporting an absence (except one that imposes a more stringent timing
requirement than the regulations provide). The Department believes that
these changes reflect a common-sense approach that better balances the
needs of employees to take FMLA leave with the interests of employers
and other workers.
The Department also is proposing changes to the medical
certification process in order to address concerns heard from
employees, employers and health care providers--all of whom agree that
the current system is not working as smoothly as it could. In addition,
the passage of HIPAA and the promulgation of regulations by the
Department of Health and Human Services that provide for the privacy of
individually identifiable health information,\5\ provide additional
reasons for the Department to reexamine the process used to exchange
medical information under FMLA.
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\5\ 45 CFR Parts 160 and 164 (referred to as the ``HIPAA Privacy
Rule'').
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The proposal improves the exchange of medical information by
updating the Department's optional medical certification form and by
allowing--but not requiring--health care providers to provide a
diagnosis of the patient's health condition as part of the
certification. Comments to the RFI suggest that, in practice, it may be
difficult to provide sufficient medical facts without providing the
actual diagnosis. However, the Department does not intend to suggest by
including such language that a diagnosis is a necessary component of a
complete FMLA certification.
The Department also believes that HIPAA's privacy protections for
patient (employee) health information have made some of the
requirements in the current FMLA regulations unnecessary. Thus, in lieu
of the current regulation's requirement that the employee give consent
for the employer to seek clarifying information relating to the medical
certification, the proposed rule highlights that contact between the
employer and the employee's health care provider must comply with the
HIPAA privacy regulation. Under the HIPAA Privacy Rule, the health care
provider of the employee must receive a valid authorization from the
employee before the health care provider can share the protected
medical information with the employer.
The proposed rule also makes clear that, if authorization under
HIPAA is not given, an employee may jeopardize his or her FMLA rights
if the information provided is incomplete or insufficient. In addition,
as long as the requirements of the HIPAA health information privacy
regulations are met, the proposal permits an employer to contact an
employee's health care provider directly for purposes of clarification
and authentication of a medical certification form. As under the
current rules, however, employers may not ask health care providers for
additional information beyond that required by the certification form.
The Department believes that these changes will address the unnecessary
administrative burdens the current requirements create and, in light of
the extensive protections provided by the HIPAA privacy regulations,
will not impact employee privacy. It has always been the case, as the
statute allows, that employees must provide a complete and sufficient
medical certification if requested to do so by the employer, and that
failure of the employee to comply with the request jeopardizes the
employee's FMLA protection.
The Department also believes that clarifying the timing of
certifications will improve communications between employees and
employers. The proposal, therefore, codifies a 2005 Wage and Hour
Opinion letter that stated that employers may request a new medical
certification each leave year for medical conditions that last longer
than one year. The proposal also clarifies the applicable period for
recertification. Under the current regulations, employers may generally
request a recertification no more often than every 30 days and only in
conjunction with an FMLA absence, unless a minimum duration of
incapacity has been specified in the certification, in which case
recertification generally may not be required until the duration
specified has passed. Because many stakeholders have indicated that the
regulation is unclear as to the employer's ability to require
recertification when the duration of a condition is described as
``lifetime'' or ``unknown,'' the proposal restructures and clarifies
the regulatory requirements for recertification. In all cases, the
proposal allows an employer to request recertification of an ongoing
condition at least every six months in conjunction with an absence.
In addition, the Department is proposing two changes to fitness-
for-duty certifications. The current FMLA regulations allow employers
to enforce uniformly applied policies or practices that require all
similarly situated employees who take leave to provide a certification
that they are able to resume work. Under the current regulations,
however, the certification need only be a ``simple statement'' of the
employee's ability to return to work. The Department believes that an
employer should be able to require that the certification specifically
address the employee's ability to perform the essential functions of
the employee's job, as long as the employer has provided the employee
with appropriate notice of this requirement. Second, the proposal would
allow an employer to require a fitness-for-duty certification up to
once every 30 days before an employee returns to work after taking
intermittent leave when reasonable job safety concerns exist. The
Department believes that these two changes appropriately balance an
employer's duty to provide a safe work environment for everyone with
the desire of employees to return to work when ready.
Other Regulatory Proposals
The Department is proposing a number of additional targeted updates
to the current FMLA regulations to resolve ambiguities and problematic
workplace consequences, without limiting employee access to FMLA leave.
A few of the more important updates are discussed below.
The Department is proposing to provide guidance on two terms in the
current regulatory definition of a serious health condition. One of the
definitions of serious health condition requires more than three
consecutive calendar days of incapacity plus ``two visits to a health
care provider.'' Because the current rule is open-ended, the Tenth
Circuit has held that the ``two visits to a health care provider'' must
occur within the more-than-three-days period of incapacity. See Jones
v. Denver Pub. Sch., 427 F.3d 1315, 1323 (10th Cir. 2006). Rather than
leaving the ``two visit'' requirement open-ended, the Department
proposes that the two visits must occur within 30 days of the beginning
of the period of incapacity, absent extenuating circumstances. By
clarifying that the period should be 30 days, the Department believes
it is providing greater FMLA protection than the stricter regulatory
interpretation offered by the Tenth Circuit.
Second, the Department proposes to define ``periodic visits'' for
chronic serious health conditions as at least two visits to a health
care provider per year. The Department is aware that some employers
have defined this term, which is currently undefined in the
regulations, narrowly to the detriment of employees. At the same time,
other employers have expressed concern that the current open-ended
definition does not provide sufficient guidance to employers who must
approve or disapprove leave and risk making the wrong decision. The
Department believes a reasonable solution is to define ``periodic'' as
twice or more a year, based on an expectation that employees with
chronic serious health conditions generally will visit their health
care providers at least that often, but they might not visit them more
often, especially if their conditions are fairly stable.
The Department also proposes changes to the current regulatory
requirements for perfect attendance awards when an employee is on FMLA
leave. The Department proposes to allow an employer to disqualify an
employee from a perfect attendance award because of an FMLA absence.
However, an employer would not be permitted to disqualify only those
individuals on FMLA-qualified leave and allow other employees on
equivalent types of non-FMLA leave to receive such an award without
violating the FMLA's non-discrimination requirement. This change
addresses the unfairness perceived by workers and employers as a result
of allowing an employee to obtain a perfect attendance award for a
period during which the employee was absent from the workplace on FMLA
leave.
Finally, the Department also proposes to update the regulation
addressing the substitution of accrued paid leave for unpaid FMLA
leave. The proposed updates reflect the trend of employers providing
employees with ``Paid Time Off'' (PTO), instead of reason-based leave
(i.e., sick leave, vacation leave). The revisions also respond to
comments indicating that an unintended consequence of the current
regulation (which has been interpreted as prohibiting employers from
applying their normal leave policies to employees who are substituting
their paid vacation and personal leave for unpaid FMLA leave) is that
employers may be encouraged to scale back their provision of paid
vacation and personal leave. Such leave policies are more generous than
what is required by the Act. The proposed update also is consistent
with how the Department's enforcement position on this issue since
1995. Since then, in a series of opinion letters, the Department has
recognized that an employee's right to use paid vacation leave is
subject to the policies pursuant to which the leave was accrued.\6\
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\6\ Wage and Hour Opinion Letter FMLA-75 (Nov. 14, 1995); Wage and
Hour Opinion Letter FMLA-81 (June 18, 1996); see also Wage and Hour
Opinion Letter FMLA-61 (May 12, 1995).
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The proposed rule applies the same requirements to the substitution
of all forms of accrued paid leave. Under the proposed rule, an
employee may elect to utilize accrued paid vacation or personal leave,
paid sick leave, or paid time off, concurrently with FMLA leave when
the employee has met the terms and conditions of the employer's paid
leave policy. The Department also believes certain safeguards for
employees are necessary. Therefore, the proposed rule clarifies that an
employer must make the employee aware of any additional requirements
for the use of paid leave and must inform the employee that he or she
remains entitled to unpaid FMLA leave even if he/she chooses not to
meet the terms and conditions of the employer's paid leave policies.
Conclusion
Fifteen years ago, Congress recognized that maintaining a careful
balance between the legitimate rights of employees and employers in the
workplace was the key to making the FMLA a success. Today, after 15
years of experience in administering and enforcing the FMLA, the
Department is pleased to report that the FMLA is generally working well
in the majority of cases and has succeeded in allowing working men and
women to better balance family needs and work responsibilities.
However, the Department also knows that the FMLA has not worked well in
every case as evidenced not only by responses to the RFI but also by
the various court decisions that have overturned specific provisions of
the current rule.
It is time to make targeted changes to the current FMLA
regulations, and, at the same time, implement the new law providing
leave for the families of military servicemembers. We look forward to
reviewing the comments on the NPRM.
Thank you for the invitation to appear before this committee. I
will be happy to answer any questions you may have.
______
Ms. Lipnic. I will say at the outset, having worked with
our enforcement personnel over a number of years at the Labor
Department and having talked with many of them around the
country, I have observed that few laws generate the kind of
support and desire to make sure the law is working properly as
does the FMLA, not that we do not take all of our statutory
responsibilities seriously, but because this is a law that
everyone can relate to, I think there is a special place
reserved for it in the department's administration of its many
laws.
I also want to say at the outset that this rulemaking
issued in February includes, as you both noted, an extensive
discussion of the new leave entitlements for military families
that were signed into law by President Bush on January 28. The
department takes its commitment to service members and their
families very seriously, and because one of the provisions
providing additional FMLA leave protection for military
families cannot go into effect until the Secretary of Labor
defines certain terms by regulation, we are moving as
expeditiously as possible.
We have reached out to the Departments of Defense and
Veterans' Affairs and the Office of Personnel Management, as
well as groups representing service members and their families,
to obtain their input. Both before the comment period on this
rulemaking and during it, we invited a number of the military
family and service organizations to meet with us to help us
better understand the unique needs of these service member
families.
While our proposal asks a number of very difficult
questions that must be addressed in the rulemaking process, we
believe this will allow us to finalize these regulations as
quickly as possible, thus ensuring that military service
members and their families receive the full protection of the
FMLA when they need it most.
To that end, the department approached this rulemaking in a
very careful, deliberative, and very transparent process. We
began a review of the regulations in late 2002, holding
stakeholder meetings that year and the year following, with
more than 20 groups representing employers and employees.
In December 2006, recognizing that we needed some fresh
thinking on the issues, we published a Request for Information,
seeking public comment on many aspects of the regulations and
also asking for more information and data from the public's
real world experiences administering the FMLA over the past 15
years. We had an enormous response to that record, more than
15,000 comments, which culminated in our publishing our report
on the Request for Information in June of 2007.
Our goal in publishing that report was to do a number of
things: first and foremost, to allow the record to speak for
itself, and, secondly, to, as we said at that time, allow all
parties to engage in a fuller discussion of the issues
presented in those comments. The comments we received were from
workers, family members, employers, academics, and other
interested parties. Many of the comments were brief emails with
very personal accounts from employees who had used family or
medical leave. Others were highly detailed and substantive
legal or economic analyses responding to the specific questions
in the Request for Information and raising other complex
issues.
We had a chance to brief the Education and Labor Committee
in a bipartisan fashion on that report last June, and we very
much appreciated the opportunity to do so.
And, of course, we have also reviewed our own enforcement
experience and our policies over the past 15 years, as well as
the enormous body of case law that has developed during that
time. A number of things were clear to us from the record
developed in response to the request for information: first,
the tremendous value of the law to workers; second, that the
FMLA is generally working well; and, third, that like any new
law, especially one that borrows concepts from other laws,
there have been a number of unanticipated consequences to the
law's use and how it has operated in workplaces around the
country. One thing that was very clear to us from the record is
that not all workplaces experience the FMLA in the same manner.
There is broad consensus that the law is valuable for
workers and their families. There are also a number of issues
that workers, employers, and health care professionals have
identified as needing to be updated in order to make the law
work better for everyone. This should be expected as it has
been almost 15 years since the department's first interim final
rule implementing the FMLA went into effect. Much has happened
since then. Numerous court rulings examining the act and the
implementing regulations, statutory and regulatory
developments, such as passage of the Health Insurance
Portability and Accountability Act that directly or indirectly
impacts administration of the FMLA.
As we said in the RFI report, the FMLA has succeeded in
allowing working parents to take leave for the birth or
adoption of a child and in allowing employees to be absent for
blocks of time while they recover from their own serious health
conditions or to care for family members recovering from
serious health conditions. The FMLA also seems to be working
fairly well when employees are absent for scheduled treatments
related to their own serious health conditions or that of a
family member.
Employers often express some frustration, however, about
difficulties in maintaining necessary staffing levels and
managing attendance in their workplaces, particularly when
employees take leave on an unscheduled basis with no advance
notice. For example, the RFI report indicated that time-
sensitive industries, such as transportation operations, public
health and safety operations, including hospitals, nursing
homes, emergency 911 services, and assembly line manufacturers
may be especially impacted by employees taking unscheduled
intermittent FMLA leave.
I see that my time is up. So I am happy to conclude there,
and I am happy to address any specifics of the proposed rule in
question and any other questions regarding our enforcement of
the law over the last 15 years.
Chairwoman Woolsey. All right. Thank you very, very much,
Secretary Lipnic.
As I said, I was a human resources professional for over 20
years, and it was very clear to me that the support you gave
your employees, you got back double in loyalty and in their
ability to focus on their job versus worrying about their
families.
Let me ask you in--it seems to me that something that is
missing in this review the question of how we can make changes
that make it better for the worker that we have learned from
these 15 years. I mean, for example, we have learned that
family medical leave works wonderfully if a person can afford
to be away from work because it is not paid.
Have you put any of your study into paid medical leave and
other topics, such as paid leave benefits for part-time
workers? What have you looked at besides just changing it so
that the employer gets protected?
I am all for understanding that you cannot have people
running in and out of the workforce minute by minute. We cannot
do that in our offices. But, actually, when somebody has an
emergency need, you cannot schedule that. So tell me if there
are other things you have looked at.
Ms. Lipnic. Madam Chairwoman, when we did the Request for
Information, we asked questions on a broad array of issues that
we had heard about from the regulated community, from
employees, from all people who are subject to the law and not
over the last 15 years, and we did get many, many comments that
requested that leave be paid. We did not address those in the
report that we published on our regulatory review because our
focus was specifically on how the Labor Department has
administered the law and how we have done so through the
regulations, but it is certainly the case that we got many
comments--and we indicated this in our report--suggesting that
people were very interested in paid leave.
Chairwoman Woolsey. How did this outreach come along? I
mean, it was very easy to reach the employer because we know
who the employers are. How did you reach the employees?
Ms. Lipnic. Well, we have done a number of things over the
past few years. First of all, the Request for Information was
published in the Federal Register and available for public
comment by absolutely anyone who wanted to comment, and----
Chairwoman Woolsey. And we know that every employee reads
the Register daily, right?
Ms. Lipnic. Well, we do get----
Chairwoman Woolsey. ``Oh, it is time to read the
Register.''
Ms. Lipnic. We did get 15,000 comments to the record, many
from individual employees. So, certainly, there was an
awareness that a review of the regulations and the law was
going on.
We also over the years have had stakeholders meetings where
we have talked to groups representing both employers and
employees.
After we published the Request for Information, the report
on it, last June recognizing how much concern and how many
issues there were related to the medical certification process
under the current law and how it works, we had another
stakeholder meeting where we invited in employee groups, again
employers, and for the first time health care providers who are
incredibly important and play an incredibly important role in
the administration of the law.
Chairwoman Woolsey. Okay. I am going to change the subject
just quickly. When we talk about the FMLA for military
families, we would like very much to have an interim
rulemaking, in that this occupation in Iraq is into its sixth
year. There are families--they are not waiting for this rule to
leave their jobs to help their loved ones, and it does not just
have to be a family member. It can also be, you know, a close
relative.
But I am telling you if we do not--if we wait 2 more years
for final rules, hopefully, this occupation will be over, but
the results of it are not going to be over, and we need to step
up to this right now. So tell me: Are you looking at interim
regulations and interim rules that could be depended on while
we are putting the final rules together?
Ms. Lipnic. We did have an extensive discussion when the
new military family leave provisions were passed about what we
thought was the best way to proceed and to move and how we
could get as quickly as possible to rules. I do want to point
out, of course, that the one provision for caregiving that
allows the 26 work weeks of leave is already in effect and went
into effect on the day that the President signed that bill into
law.
Following the enactment and the President signing it into
law, we posted some guidance on our Web site to make sure that
employers would know that they have to provide that leave if it
is requested. We have had some inquiries already, certainly at
the Labor Department, to our enforcement personnel about
providing that leave. So that provision is actually already in
effect, and the families who are in need of caregiving leave
are able to take that.
As to interim rules, as I mentioned, we had an extensive
discussion about what we thought was the quickest and best way
to implement this. Given that we had a rulemaking underway,
which was fairly well known, we were able to include the many,
many questions that we have to wrestle with in coming up with
the regulations to implement the military family provisions.
We believed then and certainly believe now, given how far
we are into this process and the groups that we have talked to,
that interim rules at this point would be a step backward, and
they would delay us. We think we can get to final rules in a
much quicker fashion, certainly once the record closes
tomorrow.
I will also tell you it is certainly not the Labor
Department's intention to take 2 years to finalize rules.
Chairwoman Woolsey. Well, all right. Well, we look forward
to working with you on this and ensuring that those rules get
finalized ASAP. They are simple.
Now I would like to yield to Mr. Wilson.
Mr. Wilson. Thank you, Madam Chairwoman.
And, Madam Secretary, thank you for your service. You,
indeed, have an excellent reputation as a former staff person
here as to your capabilities and competence, and we greatly
appreciate your service as an Assistant Secretary and wish you
well on your career.
In the department's proposed regulations, you addressed the
issue of employers granting incentive bonuses, such as perfect
attendance awards. Are these bonuses currently lawful? Has
FMLA, in your view, acted to deter employers from offering
these sorts of awards? What is the proposed change necessary?
Ms. Lipnic. Congressman, under the current regulations for
employers who provide perfect attendance awards, employers are
required by the current regulations to provide perfect
attendance awards to individuals who have been out on family
medical leave, and we have had many, many comments to the
record that we have created through the Request for Information
and certainly have heard about over the years that many
employers find that that requirement--that it devalues the
incentive that perfect attendance awards are designed to
provide in the workplace.
What we have proposed is to make a change so that employers
do not have to provide perfect attendance awards to someone who
is on family medical leave, they are free to do so, and they
also must make sure that they treat everyone who is on any
other form of leave, other than family medical leave--it would
be other types of absences or other types of sick leave--that
they treat all people, all their workers equally. So they
cannot discriminate against someone who is on family medical
leave, but they cannot place them in a preferred status either.
And the idea was to restore--what we had heard--the incentive
for perfect attendance awards is.
Mr. Wilson. Well, over the weekend, I was with a dear
family friend of ours, former administrative federal law judge
Thomasine Mason, and with Congresswoman Schroeder being here,
Judge Mason is famous as the first female elected to a full
term to the state senate of South Carolina. She served as
federal judge. She has earned like 3 years of additional leave
based on perfect attendance, a remarkable lady, and so I have
seen it firsthand.
How has the passage of the Health Insurance Portability and
Accountability Act, or HIPAA, affected employees' protections
under FMLA? How does the department's proposed regulation
address this issue?
Ms. Lipnic. Congressman, we have proposed a number of
things to essentially make the Family and Medical Leave Act
regulations align better with HIPAA. The FMLA was passed in
1993, and then HIPAA, of course, came along in 1996, and HIPAA
covers the field for medical privacy.
So, because the FMLA regulations preceded HIPAA, we have
made a couple of changes--or proposed a couple of changes--
where we are essentially saying the Labor Department in its
regulations does not have to be involved in the medical privacy
issue. That is now governed by HIPAA.
The FMLA statute requires that if employers request a
medical certification form from their employees, the employees
must provide a complete and sufficient form to their employer,
and that obligation is on employees, and that has been in the
statute from the beginning.
Employees have to ensure now because of HIPAA that they
have filled out and arranged with their health care provider
that they have a current HIPAA authorization form in effect
with their health care provider so that when they need to have
their medical information provided to the employer, either
through the medical certification form or if they want the
employer to somehow get it otherwise, that that HIPAA
authorization form has been appropriately filled out by the
employee, and that is the employee's responsibility.
Health care providers are not going to provide information
to any employer unless they have a HIPAA authorization form on
file from the employee and that that information has been
filled out, which was one of the intents of HIPAA.
So our proposal is merely to make sure that the FMLA
regulations align with HIPAA and to make it clear to employees
and employers that HIPAA is in play and that the employees need
to make sure that they have the HIPAA authorization form filled
out and that that will cover the privacy issues for the
employee.
Mr. Wilson. Thank you very much.
Chairwoman Woolsey. Congressman Bishop?
Mr. Bishop. Thank you very much, Madam Chair, and thank you
very much for holding this hearing. I think it is very
important.
Madam Secretary, a couple of questions. The Chair was
asking you about the rulemaking that is currently going on.
Essentially, there are two rulemakings going on that, as I
understand it, are joined, one having to do with the proposed
changes to the current regulations and the other having to do
with the expansion of FMLA with respect to military families.
The proposed changes to the current regulations are
considerably more controversial than are the changes to
military families. Would the department be willing to delink
the two rulemakings so that we could have the military family
regulations in place much sooner than would be the case if we
were to carry forward as you currently are?
Ms. Lipnic. Congressman, as I was saying earlier, we gave a
lot of consideration to that, what was the quickest and best
way to proceed to implement the military family leave
provisions. I would point out we do not consider them two
separate rulemakings because the military leave provisions
amended the underlying Family and Medical Leave Act.
Mr. Bishop. Okay. I think that is basically the thrust of
my question. Would you be willing to consider them to be two
separate rulemakings?
Ms. Lipnic. We looked at that initially, but because the
military family leave provisions amend the underlying FMLA and
because there are any number of issues regarding notice and
certification that impacts the underlying FMLA, we think the
better approach, as we laid out in this rulemaking, is to move
forward with the full rulemaking so that the military family
leave provisions, presumably as Congress intended, are
completely integrated with the underlying FML Act.
Mr. Bishop. I think the Congress's primary intent was to
get this done as quickly as possible, and my own view is that I
think we would see the delinking as the best path to that.
Let me move to a somewhat different area. The proposed
changes to the current regulations have been characterized by
some as being tilted more in the favor of the employer or
management than of the employee. How would you respond to that
characterization?
Ms. Lipnic. I have certainly seen those characterizations.
I do not believe that that is true. I will--it is certainly the
case that when we looked at all of the regulations and, you
know, I would point out that regulations under the FMLA in
particular, unlike many other regulatory themes, really operate
as a whole. Every part of them is linked together. And we
certainly looked at where, based on the enormous record that we
had developed from the Request for Information, we thought it
was appropriate to realign some responsibilities. That includes
some realignment of responsibilities for employers, where we
imposed additional obligations on employers, and realigning
some responsibilities on employees.
I do not think on balance, though, that it is sort of pro-
employer or pro-employee, and I guess the other thing that I
would add is I think, in the discussion of the FMLA, I think it
is a false dichotomy to set this up as sort of an employer
versus employee thing, particularly given what we are trying to
encourage through the changes to these regulations is greater
communication in the workplace between the employers and the
employees.
Mr. Bishop. What you are describing is, in fact, an ideal
world. I think we all sort of need to recognize that not all of
us live in that ideal world.
Let me be more specific. One of the proposed changes to the
regulations would require those employees with chronic ailments
to periodically receive, in effect, a doctor's certification
that that ailment remains a current condition for the employee,
and it has been estimated that that, along with other
provisions, would cost about $26 million a year for both
employers and employees. Would you not see that as a burden to
employees that might discourage them from availing themselves
of FMLA leave?
Ms. Lipnic. Congressman, as to the individuals who have
chronic serious health conditions, under the current
regulations, the requirement is that they have periodic visits
to a health care provider. That period is undefined in the
current regulations and sometimes undefined to the detriment to
employees.
Employers are entitled to a medical certification under
current law--that is in the statute--whether it is a chronic
serious health condition or any other type of health condition,
and the proposed rules which allows for an annual certification
of the chronic health condition essentially codifies what has
been the department's enforcement policy over a number of
years. It is not really a change from how the law has been
implemented over a number of years.
Mr. Bishop. Okay. Thank you very much. My time has expired.
Thank you.
Chairwoman Woolsey. Congressman Kline?
Mr. Kline. Thank you, Madam Chair.
Thank you, Madam Secretary, for joining us today.
I have a couple of questions just because I do not
understand in a couple cases what the current rules are and
certainly what the proposed changes are.
For one thing, in your written testimony, you made some
points about call-in procedures. I do not know what the
regulations currently provide, frankly. And then what would be
the changes that are coming forward? Can you just kind of
explain how that works?
Ms. Lipnic. Congressman, the issue about notice, notice
both that employers have to provide to employees about their
FMLA rights and their obligations and notice by employees to
employers is something that we put a lot of attention on in
this rulemaking and something that we heard a great deal about
in the Request for Information.
Under the current regulations, part of the reason it is
confusing is that the regulations make distinctions between
when an employee requests leave that is foreseeable--in other
words, if they are going to have surgery and they know long
enough in advance and they can tell their employer and, under
the statute, are supposed to tell the employer 30 days ahead of
time so that for everyone they can schedule around that
absence----
So there is leave that is termed foreseeable, there is
leave that is termed unforeseeable, which is essentially
unscheduled leave, and that is where the issues of notice and
how much notice the employees have to provide to the employer
get confusing, and the current regulations are somewhat
confusing on that.
The standard in the statute is that anything that is less
than 30 days, unforeseeable, that the employee should provide
notice to the employer as soon as is practicable. That is then
translated into the regulations as soon as practicable based on
the facts and circumstances, but within 2 days, and that 2 days
became hard and fast potentially 2 days after the fact, after
you have been absent from the workplace, providing notice to
employers.
There is also in the current regulations at least one
sentence that employees are supposed to follow employers' call-
in procedures, followed by the next sentence that says,
``except when they do not.'' So it is fairly muddled.
What we are trying to do is bring some clarity to that in
the proposal and, essentially, particularly when it is
unscheduled leave, to ensure that the requirement is that
employees follow the employers' call-in procedures, that that
has to be the default standard, and that the default standard
also has to be that employees notify their employers when they
are going to be absent as soon as possible, as soon as
practicable, but that should not be 2 days after the fact.
We do allow for emergency circumstances because we
certainly recognize that particularly if it is unscheduled
leave or there is some unforeseeable circumstance that
employees may not be able to notify their employers before--
follow the call-in procedures or before their shift starts, but
we think that has to be the default rule and that the
regulations probably went a little bit further. They certainly
went further than what the standard was in the underlying
statute.
So we are trying to make the default rule that everybody
has as much notice ahead of time and that employees have to
follow the call-in procedures.
Mr. Kline. Okay. Thank you.
I want to move to intermittent leave now that the
chairwoman mentioned that briefly in her remarks. Because it
does seem a matter of some concern, it seems a little bit
surprising that the department chose not to address
intermittent leave, as I understand it. Can you explain in
whatever time we have left what the issues are that surround
that and why you chose not to address it?
Ms. Lipnic. Sure. And I will say that the issue about use
of intermittent leave is something that we have heard about in
enormous fashion on both sides of this issue and how it is used
in the workplace.
Under the FMLA, employees have the right to 12 weeks of
leave. That leave can be taken in a block. It can be taken in
weeks. It can be taken in days. It can be taken in minutes.
That is what the regulations provide for, and that essentially
becomes the intermittent leave.
The purpose of it was to allow people, who may have a
medical condition that flares up, to be late for work for an
hour or go to a doctor's visit. Because the regulations allow
for the taking of the intermittent leave in minutes, what we
heard from many, many employers is that that is incredibly
difficult to administer, that it often, particularly for people
who may have a chronic health condition, becomes a license for
being tardy and that the employers have no way to verify this
absence and the amount of time that is being taken.
And, certainly, the use of intermittent leave in certain
workplaces is a real issue and I, frankly, think something that
Congress is going to need to look at further. It had been
suggested to us many times--and, in fact, this was suggested
back when the rules were first implemented in 1993--that the
time increments that employees are allowed to take intermittent
leave should not be in minutes, that it should be in some
greater block of time, an hour, 2 hours, a half a day, that
that is how much time they should be charged.
The department chose not to do that back in 1993, and we
did not think, despite the suggestions and the desires of many
employers that we do so, that we could change that time
increment given the statutory language, and I know that is
something that--and I certainly heard during this rulemaking
process that--employers are not particularly happy with.
And, again, I would suggest that I think the issue of
intermittent leave is something Congress probably needs to
grapple with in a fashion greater than was our ability at the
Department of Labor.
Mr. Kline. Thank you very much.
I yield back.
Chairwoman Woolsey. Thank you.
Congressman Hare?
Mr. Hare. Thank you, Madam Chair. Thank you for having the
hearing.
Welcome, Madam Secretary.
Just a couple of questions for you. One is, you know, I
realize businesses with five employees would struggle if even
one employee were to get sick or took extended leave, but this
is really an issue of fairness, it would seem to me, and doing
what is right.
I am wondering if you have any suggestions on what we could
do to help smaller businesses comply with FMLA, because if a
person needs the leave to be with somebody, simply because they
work for a business that is small--granted I understand the
ramifications of losing that person, but, by the same token,
the employee's basically penalized for working for a small
company.
So I wonder if you might comment on that.
Then I just maybe had one other follow up for you.
Ms. Lipnic. Congressman, I think, you know, as many
employment statutes have exceptions for small business, and
everyone recognizes those difficulties that you have pointed
out that small businesses operate on such different margins
than larger companies. I think it is a difficult issue, and,
certainly, Congress had a lot of debate when it set the
employee threshold at 50 employees for the underlying FMLA.
I am not sure I know exactly what to tell you in response
to that. The one thing that I would suggest is I think if you
were looking to make some changes to have a guarantee of
whether it is sick leave or family medical leave for small
businesses, you would have to look at a number of the issues,
including the issue about using intermittent leave, and how
that has operated in larger businesses.
Just as you pointed out, you know, the smaller the
business, once someone is absent, the impact is certainly
greater there. It is a difficult issue, and I would certainly
defer to folks with a lot more specialty in running small
businesses and seek their counsel on it.
Mr. Hare. I appreciate that.
The department is proposing regulatory changes to FMLA,
and, you know, this is a 15-year-old law, but, as I understand
it, it has not really done any data collection on how well the
law is working. In fact, the department, as I understand it,
has not done a comprehensive study on FMLA since 2000. I wonder
if you could explain the process that the department went
through to come up with their proposals and how the department
can justify them when you do not have any empirical data to
support what you found out.
Ms. Lipnic. Congressman, the Labor Department did some
survey work back in 1999 and 2000 that was published in January
2001 which we refer to as the Westat surveys that had a
tremendous amount of information about the use of family
medical leave. It also missed some important aspects, including
how this use of intermittent leave works.
Given the enormous body of case law and some very
significant cases regarding the FMLA that had developed over
the last 15 years, when we published our proposed rulemaking,
that was based on both--the record that we had developed when
we did the request for information where we had 15,000
comments. We had asked for data.
When we did the Request for Information, we had a number of
national organizations that provided us with survey data of
their own that they had done, and I think that overall the
majority of what we have proposed in this rulemaking is either
based on case law, the department's own enforcement experience
over the last 15 years, which is fairly significant, and
various stakeholder meetings.
On issues where data certainly is and would be more useful,
like, for example, to Congressman Kline's question about
intermittent leave, we did not propose a change there. We had
lots of recommendations to make changes to the definition of
serious health condition, and we did not propose a change
there. But the changes that we have proposed, we think, are
fully supported either by the case law, our own enforcement
experience, or the data that we had available to us.
Mr. Hare. Let me suggest that perhaps the department might
want to consider doing a comprehensive survey because I think,
once you do that, you really get the data that I think you need
in order to make, you know, some firm decisions here.
And, lastly, in light of the evidence that the FMLA has had
very few negative impacts on businesses, what is the
department's concern about expanding the law to smaller
businesses or industries that do not currently qualify.
And I know my time is out. I just--very briefly--I am
sorry, Madam Chair.
Ms. Lipnic. Just to respond quickly, Congressman, I would,
again, point out I do think there are a number of issues,
including the use of intermittent leave that probably need to
be examined further by Congress, and that is something that
would certainly have to be taken into account, particularly if
you were going to lower the employee threshold and cover
smaller businesses.
Mr. Hare. Thank you, Madam Secretary.
Chairwoman Woolsey. Thank you.
Congressman McKeon? And thank you for joining us today.
Mr. McKeon. Well, thank you.
And thanks for being here, Madam Secretary.
And welcome back, Madam Chair. We missed you.
Chairwoman Woolsey. Joe missed me.
Mr. McKeon. I missed you--very quiet around here.
Question, Madam Secretary. You know, as I listen to this
and think about not just this law but other laws, you were
questioned a little bit about why we could not move ahead with
the military part of this, and you indicated how long things
take around here. I was reading Congresswoman Schroeder's
statement about how long it takes to have a baby and how long
it takes to get a law passed, and it seems like it takes
forever, and this law was finally passed in 1993. If you could
just kind of walk us through the process--a law is passed. Then
the department rights regulations--how long does that take?
Ms. Lipnic. Well, I will give you the very lawyerly ``it
depends.''
Mr. McKeon. There is no law that states how long it takes
to do the regulations?
Ms. Lipnic. It completely depends on, first of all, what
the underlying statute says. For example, when the FMLA was
passed, I think Congress gave the Labor Department 120 days to
come up with regulations, and I will tell you that when I sat
up here, I thought that was nothing, but sitting here, I can
tell you 120 days is no amount of time at all. So either--
Congress prescribes a time period in which regulations need to
be promulgated.
Very often, depending on the complexity of the particular
law, agencies may publish something where they ask a series of
questions which is essentially what we have done here in the
military family leave provision, get input from the public,
either proceed to direct final regulations then or publish
interim regulations, it can take--and, obviously, depending on
what Congress requires--the agency that has to administer the
law certainly a good, you know, 3 to 6 months to come up with
some guidance, again depending on the complexity, for the
regulated community, but it then has to go through----
Mr. McKeon. Do you know how----
Ms. Lipnic [continuing]. Follow the Administrative
Procedures Act, go through a public comment period, which is
required to be at least 60 days, and then depending on the size
of the record, have to review that entire record.
Mr. McKeon. Let me get back. Do you know how long it took
to do the regulations for this bill?
Ms. Lipnic. For the underlying family medical leave, the
regulations--the law was passed in 1993. The department first
asked a series of questions, published a set of interim
regulations in 1993. It took until August of 1995 for the final
regulations, which everyone operates under today, to go into
effect. There were interim regulations, but----
Mr. McKeon. So the law said, ``We want you to pass
regulations in 120 days,'' and that took 2 years?
Ms. Lipnic. Well, there were interim regulations within 120
days to meet the congressional requirement, and then another 2
years on top of that.
Mr. McKeon. The real regulations--if you are out in the
real world running a business, a law gets passed, and it takes
120 days to do some interim regulations that probably nobody
paid too much attention to because they were waiting for the
real regulations, but that came 2 years later.
And now here we are 15 years later, and we are doing
rulemaking. When did you start the rulemaking process?
Ms. Lipnic. Well, we started with stakeholder meetings in
late 2002 into early 2003.
Mr. McKeon. 2002?
Ms. Lipnic. We sort of took a break from it for a while.
Then we----
Mr. McKeon. Yes. I am not picking on you, I am picking on
government, and we could do the same thing probably if we had
industry in here because they probably take longer than people
would like to get things done too. But, you know, I wonder
sometimes if we have not hampered ourselves so much in trying
to get things done that we cannot get things done.
I look at the Pentagon, you know, out there that took a
year to build during World War II. Now it probably could not be
built. I am sure we have enough environmental regulations
that--it was a swamp, so it probably could not be built there.
I am sure there are endangered species.
But assuming we could get through all that process, go
through all the court cases and everything, we would probably
be into the Vietnam War before we could get the Pentagon built,
and I think what has done has hampered us so much in dealing--
we are in a very competitive world now. We are competing with
China. We are competing with India. We are competing around the
world on many different issues.
I know I am really off of the subject, but I do not get
this opportunity too often, so I want to get it on the record
that we have hampered ourselves so much by laws, regulations,
rulemaking that people could go through their whole career--and
I am sure this is an exaggeration--before they could get their
family leave, you know, in just one instance.
But I think, at some point--and we could probably start in
this committee and maybe in others simplifying some of these
things to where common sense--we are in the sixth year of a war
now, and we have not gotten around to how we deal with medical
leave for the affected troops and their families, and it is not
you. It is not the department. It is the whole system that I
think really needs some--there is a good word going around
now--change.
Like every time a president comes in, we do not get change.
We do, but what we really need to focus on is what kind of
change and how we could do some change to benefit people. I
think that is why they get so frustrated with our government
that you hear these kind of answers that we cannot do something
because we are hampered.
Okay. I had my time to vent.
Thank you very much. Thank you for being here. It has been
a good day.
Chairwoman Woolsey. Well, thank you, Congressman McKeon.
Actually, maybe we could use the military family leave act
as an example of how we could--because everybody is for it, you
know, bipartisan of--maybe we could say, ``This is something we
all agree on. Can't we make it happen?'' Let's talk about it.
Mr. McKeon. How long should we talk about it?
Chairwoman Woolsey. Well, not too long.
Mr. McKeon. Yes, I am with you----
Chairwoman Woolsey. Have it done yesterday.
Mr. McKeon [continuing]. If you can find some way to speed
it up.
Chairwoman Woolsey. Thank you, Madam Secretary.
I want to tell you are a pro up there. You did a really
good job. Thank you very much for coming to see us.
Ms. Lipnic. Thank you for having me.
Chairwoman Woolsey. And now we are going to have our second
panel.
Mr. Wilson. I will be right back.
Chairwoman Woolsey. All right. You do not have to tell me
where you are going.
I would also just like to welcome you all and to remind
those of you who have not testified before this subcommittee in
the past that the lighting system is a 5-minute rule. Everyone,
including members, is limited to 5 minutes, and you saw that we
do not, you know, cut people off at the minute the red light
goes on.
But when the green light is illuminated, you begin to
speak. When you see the yellow light, that means you have 1
minute left, and when the red light goes on, that means that
your chair drops out, and you are going to disappear. No, it
means that it is time to, you know, bring it all together.
So let me introduce the entire panel in order of--that I
have here anyway.
I have first the honorable Pat Schroeder who was the first
woman elected to Congress from Colorado and served in the House
of Representatives from 1993 to 1997--1973 to 1997! I am sorry,
Congresswoman.
While in Congress, she served as Chair of the Select
Committee on Children, Youth and Families, a position from
which she was instrumental in the creation of the Family and
Medical Leave Act. In fact, Representative Schroeder was the
first member of Congress to introduce the family leave act on
April 4, 1985. She introduced the Parental Leave and Disability
Act providing leave for parents in the case of birth, adoption,
or serious illness of a child. Her bill also mandated temporary
disability leave for medical reasons.
Congresswoman Schroeder was also co-chair of the
Congressional Caucus on Women's Issues for 10 years, the first
woman to serve on the House Armed Services Committee, and
ranking member of the House Judiciary Subcommittee on the
Courts and Intellectual Property.
From 1964 to 1966, Representative Schroeder worked for the
National Labor Relations Board. Prior to her service in
Congress, she also worked for Planned Parenthood and taught in
the Denver public schools. Currently, Representative Schroeder
serves as CEO of the Association of American Publishers.
In 1961, she earned a bachelor's degree at the University
of Minnesota. She earned her law degree from Harvard University
in 1964.
Welcome, Congresswoman.
Chante Lasco is an assistant state's attorney for
Dorchester County, Maryland. I have to tell you we are going to
have a series of votes, but let's get through these
introductions and maybe have one or two--we will see how we
do--have a couple of your reports, and then we will--then we
will come back, we promise.
Okay. Chante Lasco is an assistant state's attorney for
Dorchester County in Maryland, a position she has held since
February 2006.
You know, if you would all be happy with this, I will just
enter this into the record, and we will get started because it
is going to take me 20 minutes to read all this.
Okay. So, without objection, I am going to enter the
introductions of our witnesses, our wonderful panel of
witnesses, into the record, and we will begin with
Congresswoman Schroeder.
STATEMENT OF HON. PAT SCHROEDER, FORMER REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO, ORIGINAL SPONSOR, FAMILY
AND MEDICAL LEAVE ACT
Ms. Schroeder. Thank you very much, Congresswoman Woolsey,
and this wonderful panel.
I really, really appreciate the time and the effort
because, as we all know, employment practices in the U.S. have
really not kept pace with most of the rest of the developed
world, and as the congresswoman said, I am kind of the mother
of the Family and Medical Leave Act, and it did take 9 years to
get this thing into law. So it was a very frustrating and long
period.
In 1988, after it had been introduced for 3 years, I looked
insanely at running for president, and when I came to my senses
and got out, my good friends said to me, ``But we have lost our
forum for talking about family issues,'' and so Gary David
Goldberg, who was then writing ``Family Ties,'' and Dr. T.
Berry Brazelton, who is the famous pediatrician from Harvard,
and Dr. Diana Meehan and I decided to do this family tour, and
we basically went to the South to talk about family leave.
We went to the primary states in the South because that is
where we were having the most trouble trying to get co-
sponsors, and I must say, Congressman Wilson, we were so
impressed with your state because, in your state, yours was the
only state in the South where the Chamber of Commerce backed
us. They were very, very pro, and they were very welcoming.
In all of these states, we outdrew all the politicians.
People came out in droves, and the stories we heard you all
know. It was very tragic. This choosing between your job or
your family was a very tough thing.
The other thing we know was there was so much research done
on bonding, how important those early bonding years were, and
there was research even showing that many criminals had not had
proper bonding. So this was important.
Now I had started out wanting 18 months. We got 12. I
wanted companies with 25 or more being covered, but we got 50
and so forth and so on. But we made tremendous progress, and we
came back, and we even had--at that point, the first George
Bush was running for president, and even he said that he would
back family leave because we had made so much noise in so many
states. We were very disappointed when he vetoed it after we
passed it the first time, and then he vetoed it again, and it
took until 1993 when we finally were able to pass it and get it
signed into law.
It has been very depressing to see for these 15 years we
really have not made much progress until all of you, thank
goodness, did something for our military families, which was
long, long overdue, and now we see a few states, like--
Congressman Payne, the State of New Jersey has done a wonderful
job of passing paid family leave, and I think that is now been
signed into law or is about to be. So that is very, very
exciting.
But it really seems to me that the time has come where we
need to look at paid leave because so many families cannot deal
with this, and, Congressman, you were talking about so many
companies are--people who work in smaller places cannot use
this. So we really need to investigate how can we move forward
on this.
This is a very, very important thing, and people in other
countries have done it long ago. We still are doing less than
any other country, any other developed country in this area. So
I really thank you so much, Congresswoman, for starting these
hearings because I think after 15 years, it really is time to
look at this and say, ``Can't we go forward? Can't we build on
this?''
After we passed this, for 2 years, we went around the
country to have hearings to see if anybody had been severely
impacted because the horror stories we heard before we passed
this were like all industry was going to stop in America, and,
happily, we did not find that kind of impact. Instead, we found
people were very happy.
So thank you very much. I will be quiet and move along.
[The statement of Ms. Schroeder follows:]
Prepared Statement of Hon. Patricia S. Schroeder, President & Chief
Executive Officer, Association of American Publishers, Former Member of
Congress
American families will tell you employment policies have not kept
pace with the changing needs of the workforce in this country.
I was proud to be the ``mother'' of the Family Medical Leave Act
(FMLA). It took nine months to deliver each of my children and nine
years to deliver FMLA! I had worked on the bill for several years and
was amazed by what a hard sell it was. Pediatricians everywhere felt it
was so important for mothers and fathers to have time to bond with new
borns. Bonding wasn't just something NICE to do; there were volumes of
research proving it essential to healthy development. Meanwhile, the
business community continued to be able to say to workers, ``Choose,
it's your family or your job;'' or ``It's your baby or your job.'' This
seemed very barbaric.
In 1988, after coming to my senses and getting out of the
Presidential race, I looked for another way to have some impact in the
campaign for work and family issues. My friends, who had helped me with
FMLA, Dr. T. Berry Brazelton, America's favorite pediatrician; Gary
David Goldberg, creator of the television show Family Ties; and Diana
Meehan, a distinguished writer and thinker, said they would join me in
a ``Great American Family Tour.'' The tour would go to early primary
states, hold meetings and ask people to get the candidates to commit to
support the FMLA and other badly needed family legislation. We got
larger crowds than the candidates wherever we went.
We were so excited when candidate George H.W. Bush said he
supported FMLA during the campaign and were shocked when he vetoed it
after its passage saying, he was for it in concept but not in the law!
So much for campaign promises. FMLA was the first major bill signed by
President Clinton in 1993. He had been the Governor of Arkansas during
our tour, joined us, and was fully ready to go! Every developed country
had a stronger bill than we passed, but at least the United States was
no longer a zero.
When we passed it, there was huge opposition. * * * many said they
didn't want the Federal Government mandating benefits, employees should
have the ``freedom'' to negotiate their own benefits! Others did not
want men included; they wanted maternity leave. However, there were
legal cases saying such benefits should be extended to both men and
women.
Here is what the amended bill said:
Any company with less than 50 employees is not covered. An employee
must work a year before being eligible. Family leave was reduced from
18 weeks to 12 weeks. Medical leave was reduced from 26 weeks to 12
weeks.
Still the business community howled. There was a Commission that
studied the impact of FMLA on American businesses for two years after
its enactment. The impact was very slight. Unlike a heart attack or
major illness, employers could plan for when an employee with a new
baby would be on leave. There are many companies that provide qualified
employees on a short-term basis to fill in. Obviously, families that
used it loved it. However, many families could not use it because they
either worked in smaller companies that weren't covered or they could
not afford to miss the paychecks.
Here we are in 2008, fifteen years later, and we haven't made much
progress. I do want to compliment you for including in the Defense
Authorization bill an extension of leave to six months for families of
workers who have a seriously injured service member and 12 weeks leave
if it is needed because of the deployment or impending deployment of a
family member. Thanks so much for that much needed coverage, but we
still need to consider paid leave and of course many of us are very
worried that the Department of Labor will propose new regulations,
making it more difficult for workers to access the FMLA leave.
It seems to me we should be continuing to catch up with the rest of
the world. Juggling work and family is going to be essential for almost
every American family in the global economy we live in. The Norman
Rockwell image of full-time caregiver at home is history. FMLA should
be expanded to provide coverage to all Americans and Congress should
try and figure out how to move to paid leave.
Thank you.
______
Chairwoman Woolsey. Thank you.
Ms. Lasco?
STATEMENT OF CHANTE LASCO, NEW MOTHER
Ms. Lasco. Thank you for having me. I am humbled to be here
and also to follow Representative Schroeder. But, basically, I
have more of a personal story.
On July 22 of 2007, I gave birth to my first child, Cooper,
who all of you unfortunately heard this morning, but, as with
millions of new parents before me, my life and my perspective
were forever altered by having my first child. And one of the
first challenges I had to face was how to find this balance,
how to spend as much time as I could with him, before going
back to work.
Fortunately, I do work for our county, so I qualified to
take leave under the Family and Medical Leave Act. So, when I
first found out I was pregnant and inquired about taking that
leave, I was frankly surprised to find out that it did not
require any payment whatsoever, and all of my friends who had
not had children yet did not realize that either. So we were
all surprised by that, actually.
And then a lot of my friends said, ``Well, you know, you
work for a government agency.'' You would think maybe a
government agency would be proactive and be able to serve as a
role model for the private sector, but that did not happen
either.
I was permitted to use my annual leave and my sick leave
after getting a note from my doctor that I needed time to
recuperate from birth, which I thought was somewhat obvious.
But, in any case, I was able to get some of my 12 weeks of
leave paid, but, of course, 9 weeks were not paid, and, during
that time, I still had to pay all of my bills, including my
huge student loans from law school, on top of all of the new
baby-related costs.
In the end, I was able to take the full 12 weeks, largely
due to a very tragic event in my life, which was the death of
my mother from cancer. My mother died 2 days after Christmas in
2006. This was about a month after I told her I was pregnant.
She was very excited about my grandson--her grandson coming on
the way, and I thought that she might actually hang in there
long enough to meet him, but that was not to be.
However, after she passed away, I was very surprised to
discover she had a small life insurance policy, and I was one
of the beneficiaries, along with my brother, and it was this
insurance policy that made it possible for me to stay home and
use my leave. So I realized that was the last gift, and the
best gift I ever got from her.
Yet the 12 weeks did go by really fast, when you are trying
to get to know your own child, nursing him, holding him,
rocking him to sleep, and trying to figure out what soothes
him, what kind of person he is going to be. All of that went by
extremely fast, and the first day I had to go back to work, I
cried three times on my way to work.
I also discovered how difficult it was and incredibly
expensive it was to find child care for a 12-week-old baby.
That is almost impossible to find and to afford. Therefore, my
husband, who is a nurse, who is with me here today, quit his
job. He stays home with our child during the week while I am at
work, and he works weekends in a new position, and then I stay
home alone with the child during the weekends, which is very
difficult on us as a family, but it is the way that we have
been able to make it work.
Adding to all of these difficulties is the fact that I was
very aware of all the health benefits of nursing my child.
Research suggests that it not only leads to fewer colds and ear
infections, which, frankly, lowers parent absenteeism at work,
but it could prevent everything from obesity to leukemia. These
are some of the things that you hear.
So I wanted my son to get all these benefits, but having to
go back to work at just 12 weeks made that difficult, so I have
been balancing that and I am still balancing that. I am a
prosecutor, and I find myself running back during a recess from
court to pump or nurse my son in the office, and running back
to the courtroom. But I am very lucky because I am in a
position where I am able to do that, and I know many women who
are waitresses and in positions where that is just physically
impossible.
So, in conclusion, I just want to say, despite all the
financial, emotional, logistical challenges I have faced, I
have really benefited from the FMLA and am very grateful to the
honorable Pat Schroeder and all other Congress members who
passed this very important protection.
I was actually a little reluctant to come forward today
because I felt that I was very fortunate to be able to work
this out the way that I did and that there are many other
workers who are in a much tougher position, people who are
working part-time, who, therefore, do not qualify or who work
for smaller companies, or who just simply cannot afford to take
any kind of unpaid leave.
I would also just like to say that, of course, if I had the
choice, I would much rather have my mom here, I would much
rather have had her be able to meet my son, but I also
recognize what a gift it was that I was able to afford to take
my leave and that she really made that possible for me.
She was a single mom. She worked two jobs, and she put
herself through school to become a psychologist in order to
better all of our futures. So she really--that was her legacy,
and I still do not know what kind of legacy I will leave for my
own son, but I just want to say that all of you involved in
creating the FMLA and all of those who may seek to change it,
you all have the possibility of leaving a legacy as well, and I
challenge you to create an even better legacy for the FMLA.
Thank you for your time and attention.
[The statement of Ms. Lasco follows:]
Prepared Statement of Chante Lasco, New Mother
On July 22, 2007, I gave birth to my first child and, as with
millions of new parents before me, my life and my perspective were
forever altered. One of the first challenges I had to face as a new
mother was how to make it possible to spend as much time as I could
with my newborn son. Fortunately for me, I met the requirements to take
time off from my job as a prosecutor under the Family Medical Leave
Act.
When I first found out I was pregnant and inquired about taking
leave, I was surprised to learn that such leave is totally unpaid. All
of my friends who hadn't had children were equally stunned as they,
too, assumed at least some of this leave would be paid. Additionally,
because I work for the government, I had thought that perhaps
government agencies would offer enhanced benefits to serve as a role
model for the private sector, but I was wrong.
I was permitted to use annual leave and after getting a note from
my doctor stating that I needed time to recuperate from giving birth
(which seems like it should be obvious) I was able to use my accrued
sick time. So I managed to get a few of the twelve weeks off paid but
while I was not being paid, of course, the mortgage still had to be
paid, the utilities still had to be paid, and my huge student loans
from law school still had to be paid, on top of all the new baby-
related costs. Still, I was able to take the full twelve weeks largely
due to a tragic event that occurred during my pregnancy--the death of
my mother from cancer.
My mother died two days after Christmas 2006, about a month after I
told her I was pregnant. She was very excited about her grandchild on
the way. I thought she might hang in there long enough to meet her
grandson but it was not to be. Much to my surprise, I learned after her
death that she had a small life insurance policy for which I was one of
the beneficiaries. I soon realized that this insurance money was the
last and best gift I ever received from my mother because it was what
made it possible for me to stay home with my baby.
Still, twelve weeks goes by fast when you are getting to know to
your own child. Twelve weeks of nursing him, holding him, rocking him
to sleep. Twelve weeks of changing him, bathing him, and learning what
soothes him. All too soon, twelve weeks had passed and it was time to
leave my tiny baby and return to work. I cried three times during my
first day back. To make matters worse, I soon discovered that finding
child care for a twelve-week-old baby was exceedingly difficult and
incredibly expensive. Thus, my husband--a nurse--left his job and took
a weekend job so we can take turns caring for our child. My husband
cares for our baby while I am at work during the week and I care for
him alone on the weekends while he works twelve-hour shifts. This means
we do not have to pay for child care but it also means we rarely see
each other and seldom are together as a whole family.
Adding to the difficulties of returning to work is the fact that my
baby depends on me for sustenance. The health benefits of breast milk
are astounding, with research suggesting it not only means fewer colds
and ear infections (and thus less parent absenteeism at work) but may
help prevent everything from obesity and diabetes to leukemia. Trying
to ensure my son gets these benefits while at the same time having to
return to work after twelve weeks has been an immense challenge. I have
found myself struggling to be both a full-time prosecutor and a nursing
mom, running to my office during recesses to pump breast milk and
having my husband drive my son to my office each day to nurse at lunch.
Still, I know that I am one of the lucky ones. After all, I not only
had twelve weeks to nurse my son at home, I also have an office to
nurse and pump in, unlike some other women I know.
In conclusion, despite these financial, emotional, and logistical
challenges, I have benefited from the Family Medical Leave Act and I am
grateful to the Honorable Pat Schroeder and other Congress members who
created this incredibly important protection. To be honest, I was a bit
reluctant to come speak to you today because I know that I am one of
the lucky ones. I can't help but think about all the other workers who
can not benefit from this law. Those who work two or three part time
jobs and aren't lucky enough to be full time. Or those who simply
cannot afford to take unpaid leave. Despite how crucial the FMLA is, it
still does not go far enough to help enough people.
In the end, I want to say that if I'd had a choice, I would rather
my Mom had had a chance to meet my son and to hold him in her arms
rather than living off of her life insurance policy during my family
leave. But sometimes life is about doing the best you can with the
limited choices you are given and seeing a gift for what it is. So I am
grateful for every day of those twelve weeks with my son and I thank
those of you who created the FMLA. But I also thank my Mom for making
it possible to actually use it. I know she'd be proud of me speaking
here today. She was a single Mom who worked two jobs and put herself
through school to become a psychologist. Her legacy was one of hard
work and struggle and I now know how hard it must have been for her to
leave us with babysitters and go to grueling jobs. And yet she fought
to improve her life and to help me get where I am today. That was her
legacy. I don't yet know what kind of legacy I will leave for my own
child: our story is just beginning. Those of you involved in creating,
protecting, or even seeking to weaken the FMLA will leave a legacy,
too, and I challenge you to use the Family Medical Leave Act to instead
create an even better legacy for the future. Thank you for your time
and attention.
______
Chairwoman Woolsey. Thank you.
We have three votes. If the three of you can wait for us--I
mean all of you--we will be back as soon as the third vote is
over, which means it could be 20, 25 minutes.
[Recess.]
Chairwoman Woolsey. We will call this hearing back to
order, and what you have to know is--we are sorry it took so
long--we swore in a new Member of Congress from the State of
California, Jackie Speier, this morning, but that all takes a
long time. Just so you know how it works, they put that in
between a vote, the swearing-in, then two more votes, so,
indeed, we stay there instead of running back and forth.
So, Jennifer Hunt, we are glad to hear from you.
STATEMENT OF JENNIFER HUNT, AIRLINE ATTENDANT
Ms. Hunt. Thank you, Chairwoman, for holding this hearing
and inviting me to testify today.
My name is Jennifer----
Chairwoman Woolsey. I do not think you have your microphone
on.
Ms. Hunt. I will scoot a little closer.
My name is Jennifer Hunt, and I am a 19-year full-time
flight attendant with US Airways currently based at Ronald
Reagan Washington National Airport and a member of the
Association of Flight Attendants. I am the wife of John Calley,
a Blackhawk helicopter pilot with the Virginia Army National
Guard and an Iraq war veteran who completed a 17 month
deployment to Iraq in February of 2007. John is a commercial
pilot, and we have two wonderful young children.
As a family where both my husband and I work full-time, I
am here to tell you that the Family and Medical Leave Act has
been a great benefit and has provided peace for many.
When Congress passed the Family and Medical Leave Act in
1993, the intent was to provide an employee 12 weeks of unpaid
leave if they worked a minimum of 60 percent of a full-time
schedule. When developing this threshold, Congress looked at
the traditional 40-hour work week which comes to 1,250 hours.
However, I and thousands of other full-time working flight
attendants in this country have unfortunately been unable to
take full advantage of this benefit. This problem arises out of
the fact that flight crew pay hours are calculated in a very
unique way. Flight attendants are only paid for their flight
hours, which is basically the time from when the door of the
aircraft closes until arrival at the destination airport.
On the average, when I fly a trip, I am gone 60 to 65
hours, away from base, but I yield about 18 paid flight hours.
Your average flight attendant in the industry today works
approximately 80 flight hours a month, which translates to
approximately 20 days of flying. Again, let me remind you those
80 hours I referenced are only flight hours. They do not
include all the time and service to the company performing
work.
As you can see, the calculation of hours for flight crews
in the airline industry is very unique. Basing a threshold of
1,250 hours to our uncommon situation is not relevant. My own
situation will help shed some light on this problem.
After the birth of our second child and the completion of
my husband's deployment to Iraq, I returned to full-time
employment as a flight attendant with US Airways, arranging it
so that I could be home on the days that my husband worked his
schedule in order to care for our two small children.
On December 27, 2007, my husband was diagnosed with cancer.
While exploring the various treatment options available to him
and preparing for imminent surgery, I immediately applied for
the Family and Medical Leave. Because of the way our hours are
calculated, I did not meet the 1,250-hour requirement for FMLA.
I should point out that I was working at US Airways flying
75 flight hours a month. This is above the 73 flight hours a
month that US Airways defines as a full-time schedule.
While I was unable to qualify for FMLA, I did however
qualify for Personal Care Leave, which is something my union,
the Association of Flight Attendants, had negotiated with our
company management. Negotiating a more meaningful FMLA policy
is something that we at US Airways and many other flight
attendants at other airlines have had to do.
The unfortunate thing with our company-based personal care
leave is that it must be used in a 5-day block. The provision
within FMLA that would have allowed me to take intermittent
leave at various times was not an option for me and my family.
Instead of missing 1 day, for instance, to take my husband to
medical appointments, I would be forced to take 5 days off, a
waste of productivity for the company and 5 days of no pay for
my family at the worst possible moment.
I did not want, nor was I willing to take, 5 days of unpaid
leave every time I needed to utilize my leave. In the end, I
was able, due to the flexibility that my seniority provides, to
adjust my schedule so as not to use the personal care leave and
avoid such a prolonged absence from work.
As my husband's surgery approached in February of 2008, I
was forced to juggle my flying schedule to attend his surgery
and post-operative care. Very soon after my husband's release
from the hospital, I had to return to work. I was incredibly
fortunate that I could rely on friends and family to assist in
the care of my husband following his surgery and the care of
our two children. If I did use the personal care leave, I would
have unfortunately missed 5 full days of paid flying, and I
could not afford that option while my husband was recovering.
Madam Chair, this denial of FMLA benefits to flight crew is
frustrating because the original authors of FMLA were clear in
their intentions that the new law must cover flight crew
members who work full-time schedules. This issue was addressed
on the House floor, and the bill authors made clear that flight
crews were not meant to be held to a hard number for
qualification.
So we are frustrated that we have been forced to bargain
for a right that every American is afforded under the law. What
is most frustrating is the fact that we were intended to be
covered by the law from the very beginning. Congress must
correct this oversight and get back to the original intent of
the law.
H.R. 2744, a bipartisan bill introduced by Representative
Tim Bishop and supported by a majority of the House of
Representatives, will provide the necessary clarification to
the Family and Medical Leave Act that is so needed. This bill
states that airline flight crews will be considered qualified
for FMLA if they fulfill or have been paid for 60 percent of
their airline's full-time schedule.
The good news for me and my family is that my husband is
expected to make a full recovery. However, tens of thousands of
other flight attendants are not so lucky. Many are denied FMLA
benefits despite the fact that the law was intended to cover
flight crew members.
The Family and Medical Leave Act has helped millions of
employees to remain with their employer, but still meet the
needs of their family. I urge you to pass H.R. 2744 in order to
correct this oversight and get back to what Congress originally
intended--that I and the over 90,000 flight attendants in this
country will be able to have the peace of mind that the Family
and Medical Leave Act is intended to provide.
[The statement of Ms. Hunt follows:]
Prepared Statement of Jennifer Hunt, Flight Attendant
Thank you, Chairwoman Woolsey and the distinguished members of this
panel. I very much appreciate you holding this hearing and inviting me
to testify today. My name is Jennifer Hunt and I am a 19 year full time
flight attendant with US Airways currently based at Ronald Reagan
Washington National Airport and a member of the Association of Flight
Attendants. I am the wife of John Calley, a Blackhawk helicopter pilot
with the Virginia Army National Guard and an Iraq war veteran who
completed a 15 month deployment to Iraq in February of 2007. John is a
commercial pilot with Comair and we have two wonderful young children.
As a family where both my husband and I work full-time, I'm here to
tell you that the Family and Medical Leave Act has been a great benefit
for millions of American families since it's enactment in 1993.
Allowing an individual to take up to 12 weeks of unpaid leave in order
to care for themselves or a family member during an illness or injury,
knowing that they will have a job to return to, has provided peace of
mind for many.
However, I and thousands of other full time, working flight
attendants in this country have unfortunately been unable to take full
advantage of this benefit. This problem arises out of the fact that our
pay hours are calculated in a very unique way for airline flight
crews--flight attendants and pilots--than are those in other
industries. Our unique situation demonstrates that one size does not
fit all.
When Congress passed the Family and Medical Leave Act in 1993, the
intent was to provide an employee 12 weeks of unpaid leave if they
worked a minimum of 60% of a full time schedule. When developing this
threshold, Congress looked at the traditional 40 hour work week as
defined by the Fair Labor Standards Act: 60% of a full time schedule,
based on the ``traditional'' 40 hour work week over a year is
approximately 1,250 hours. So, as the law was written, someone has to
have worked 1,250 hours in a 12 month period.
The problem for flight attendants and pilots is that, as I stated
previously, the timekeeping methods and calculation of paid hours are
very unique in the airline industry. For example, we use three
different types of hours to classify our time spent in the employ of
the airline.
The first type of hours are ``flight hours.'' This is basically the
time from when the door of the aircraft closes and it starts to move
until the moment the aircraft comes to a stop at the arrival airport
and the deplaning door opens. These flight hours are time for which we
receive our hourly rate of pay. Our pre-flight safety checks, boarding
and deplaning time on each and every flight is unpaid time, yet we are
still on duty with the company.
The second type of hours, time spent performing duties such as
those I just mentioned, as well as time on the ground in between
flights, is referred to as ``duty hours''. Duty time usually begins
approximately 1 hour before the first scheduled flight of the day up
until approximately fifteen to thirty minutes after the last flight of
the day. Again, flight attendants do not receive an hourly rate of pay
for these working hours.
The third category of hours is called ``time away from base''.
These hours combine all the hours that we spend away from the airport
in which we are based. Part of this calculation is the time spent in
hotels away from home and family. For example, I am based at Washington
Reagan Airport. I consistently work trips that mean I am away from
Reagan National for up to 4 days, working flights to various cities
across our country. The hours I spend away from home, at the request of
the company, are defined as ``time away from base'' hours and the
significant majority of those hours are unpaid, despite the fact that I
am on duty and available for duty in service to my company. During the
majority of these hours, I am governed by--and must adhere to--FAA
regulations.
Your average flight attendant in the industry today works
approximately 80 flight hours a month, which translates to
approximately 20 days of flying. Again, let me remind you those 80
flight hours I reference are only flight hours. They do not include all
the time spent in service to the company performing work.
As you can see, the calculation of hours for flight crews in the
airline industry is very unique. Basing a threshold of 1,250 hours to
our unique situation is not relevant. It is simply like comparing
apples to oranges and does not adequately reflect the reality of work
for airline flight crews.
My own situation will help shed some light on the problem. After
the birth of our second child and the completion of my husband's 15
month deployment to Iraq, I returned to full time employment as a
flight attendant with US Airways. I continued to work a full time
schedule upon my return, arranging it so that I could be home on the
days that my husband worked his schedule in order to care for our two
small children.
On December 27th, 2007 my husband was diagnosed with prostate
cancer. While exploring the various treatment options available to him
and preparing for a potential surgery, I immediately applied for Family
and Medical Leave. Because of this unique way in which our hours are
calculated, I did not meet the 1250 hour requirement for FMLA. I should
point out that I was working a full time schedule at US Airways flying
75 flight hours a month. This is above the 73 hours a month that US
Airways defines as a full time schedule.
While I was unable to qualify for FMLA, I did however qualify for
Personal Care Leave which is something my union, the Association of
Flight Attendants, had negotiated with our company management.
Negotiating a more meaningful FMLA policy is something that we at US
Airways and many other flight attendants at other airlines have had to
do. Even the companies over the years have recognized the fact that the
majority of flight attendants would not qualify for FMLA using the
1,250 hour threshold. They themselves have recognized that the 1,250
hours is not translatable for the unique time keeping methods of our
industry.
The unfortunate thing with our company-provided Personal Care Leave
is that it must be used in a 5 day block. The provision within FMLA
that would have allowed me to take intermittent leave at various times
was not an option for me and my family. Instead of missing one day, for
instance, to take my husband to medical appointments, I would be forced
to take 5 days off, a waste of productivity for the company and 5 days
of unpaid days for my family at the worst possible moment.
I did not want, nor was I willing to take, 5 days of unpaid leave
every time I needed to utilize my leave. In the end I was able, due to
the flexibility that my seniority provides, to adjust my schedule so as
not to use the Personal Care Leave and avoid such a prolonged absence
from work.
As my husband's surgery approached in February of 2008 I was forced
to again juggle my flying schedule to attend his surgery and post-
operative care. Immediately upon my husband's release from the
hospital, I had to return to work. I was incredibly fortunate that I
could rely on friends and family to assist in the care of my husband
following his surgery and the care of our two children. If I did use
the Personal Care Leave, I would have unfortunately missed five full
days of paid flying time and could not afford that option while my
husband was out of work during his recovery process.
While I was able to adjust my schedule to attend to my family's
needs during this time, approximately 25% of the flight attendant
population is on what is called ``reserve'' status. For reserve flight
attendants, FMLA benefits are out-of-reach and virtually impossible to
obtain. Reserve flight attendants are crewmembers that are on a ``on
call'' status to staff flights during irregular aircraft operations or
in case of crewmembers who become ill during their flight assignments.
Reserve flight attendants can be ``on call'' up to 24 hours a day for
approximately 20--21 days a month. Reserve flight attendants can
receive a phone call from the company at any time during their on-call
timeframe. Upon receiving the phone call to report to work, flight
attendants have between 1--2 hours to be at the airport ready to work
the required flight. Reserve flight attendants are truly tied to their
phones and waiting for calls. They do not have the flexibility while
``on call'' to get a second job to supplement their income. They must
be ready and able to head to the airport at a moments notice. If they
have children, they must have childcare ready to go at a moments
notice.
Reserve flight attendants are classified and treated by the
airlines as full time employees, as airline management itself
recognizes that reserve flight attendants are technically on duty to
the airline during their reserve time and must abide by all Federal
Aviation Regulations governing flight attendants during that reserve
time. As part of the recognition that they are full time employees, the
airlines guarantee that those flight attendants will at least receive a
payment for a minimum number of flight hours a month.
For example, a reserve flight attendant with US Airways is
guaranteed to receive payment for 73 flight hours a month for their
time commitment to the company during their approximately 20 days of
being ``on call.''. The flight attendant could very well be called in
to fly more than those 73 flight hours in a given month, and they will
receive payment for their actual hours, but because of their time
commitment to the company, they are guaranteed at a minimum to be paid
73 flight hours.
The unfortunate thing for these reserve flight attendants is that
for FMLA qualification, only the time that they are called in to work a
flight counts towards reaching their 1,250 hour threshold. It is
virtually impossible for reserve fight attendants to qualify for FMLA.
As they are the most junior flight attendants at any base, they need
the flexibility that Family and Medical Leave provides.
Madame Chair, this denial of FMLA benefits to flight crew is
frustrating because the original authors of FMLA were clear in their
intentions that the new law must cover flight crewmembers who work full
time schedules. This issue came up on the House floor on May 10, 1990.
Congressman Norman Minetta asked Congressman Clay, one of the bill's
authors, about this situation faced by flight attendants and pilots and
the unique way their hours are calculated. Mr. Clay's response was
clear. He said:
``We certainly do not intend that dedicated workers in unique
circumstances should be excluded from the bill's protection simply
because of their industry's unusual time-keeping methods. Flight
attendants and pilots who work the number of hours constituting half-
time (eventually increased to 60%) employment during the previous 12
months as defined either by a collective bargaining agreement or by
industry standard are fully entitled to family and medical leave under
this bill.''
Furthermore, the Senate report language accompanying the final
bill, states clearly that the ``minimum hours of service requirement is
meant to be construed broadly * * *''
So, we are frustrated that we have been forced to bargain for a
right that every American is afforded under the law. What is most
frustrating, is the fact that that we were intended to be covered by
the law from the very beginning. Congress must correct this oversight
and get back to the original intent of the law.
HR 2744, a bipartisan bill introduced by Representative Tim Bishop
will provide the necessary technical correction to the Family and
Medical Leave Act that is so needed. This bill states that airline
flight crews will be considered qualified for FMLA if they fulfilled or
have been paid for 60 percent of their airline's full time schedule.
Although a full time schedule varies by carrier, each carrier has
established its own definition of what constitutes a full time
schedule. That full time schedule is established through a monthly
``guarantee'' or monthly ``minimum''.
The term is a standard in the airline industry and is used by both
unionized and non-unionized airlines. The employer is guaranteeing that
a full-time flight attendant or pilot will get--at a minimum--a set
number of flight hours scheduled in a month.
For example, the monthly guaranteed minimum flight hours at US
Airways is 73 flight hours. US Airways is basically saying that each
flight attendant with the airline will get scheduled for 73 flight
hours that month. This constitutes a full-time schedule. A flight
attendant may subsequently schedule themselves to work for less than
the 73 flight hour threshold and get paid fewer hours, or a flight
attendant may choose to work 95 flight hours in a month and gets paid
for 95 hours. But all flight attendants at US Airways are promised by
the company that as a flight attendant--as a full time employee--they
will get scheduled for 73 flight hours.
The concept of a guarantee is an industry standard term. However,
there is no one guarantee that is applied uniformly throughout the
industry as monthly guarantees vary from airline to airline. The
employing airline is allowed to develop the monthly guarantee due to
the unique nature of each individual airline's scheduling needs. This
allows flexibility for the employer to determine what that specific
airline's full time schedule is. The ``full time'' schedule at an
airline may be changed from year to year due to the changing nature and
uniqueness of each airline's operation and needs. Again, this provides
the employer flexibility to increase their ``full time'' schedule as
needs and demands may dictate.
The good news is that my husband is expected to make a full
recovery. However, tens of thousands of other flight attendants are not
so lucky. Many are denied FMLA benefits despite the fact that the law
was intended to cover flight crew members. The Family and Medical Leave
Act has helped millions of employees to remain with their employer but
still meet the needs of their family. I urge you to pass HR 2744 in
order to correct this oversight and get back to what Congress
originally intended--that I and the over 90,000 flight attendants in
this country will be able to have the peace of mind that the Family and
Medical Leave Act is intended to provide.
______
Chairwoman Woolsey. Thank you very much.
Ms. Cossette?
STATEMENT OF BRENDA COSSETTE, ON BEHALF OF THE SOCIETY FOR
HUMAN RESOURCE MANAGEMENT
Ms. Cossette. Madame Chair Woolsey and distinguished
members of the subcommittee, my name is Brenda Cossette, and I
am the director of human resources for the City of Fergus Falls
in Minnesota. I commend the subcommittee for holding this
hearing on the Family and Medical Leave Act, and I appreciate
the opportunity to provide testimony.
By way of background, I am a certified H.R. professional
with over 25 years experience in human resource management. In
my current role, I manage the human resource function for the
City of Fergus Falls in Minnesota, ensuring compliance with all
state and federal laws and administering policies and
procedures, including the Family and Medical Leave Act.
I appear today on behalf of the Society for Human Resource
Management, or SHRM, of which I am a member, and SHRM is the
world's largest professional association devoted to human
resource management, and it is uniquely positioned to provide
insight on workplace leave policies.
Please note that I do not sit here before you today as
merely an H.R. professional, but as an employee who is
personally benefiting from the act's provisions. I was
diagnosed with breast cancer in September and have had two
separate surgeries and have just finished undergoing
chemotherapy.
With cancer as a chronic condition, my need to use FMLA
leave continues on an intermittent basis. The benefits afforded
under the FMLA allow me to take time off as necessary for my
treatments and for the often unpredictable complications of
chemotherapy. The FMLA also allows me to take time off without
any accompanying stress or anxiety about my absence from the
workplace.
Therefore, my perspective upon this issue today is based on
real experience tempered with an appreciation for the needs and
concerns of employers.
Both employers and employees benefit from workplaces that
foster and support an appropriate balance between work and
family demands, and the Family and Medical Leave Act was
premised on this principle. While I believe that H.R.
professionals work diligently to assist employees in striking
this balance, after 15 years of experience administering FMLA
leave, I am confident this important statute is in need of
modest, yet important fixes to ensure that it serves the best
interests of both employees and employers.
Undoubtedly, the Family and Medical Leave Act has helped
millions of employees and their families. For the most part,
the family leave portion of the FMLA, which provides up to 12
weeks of unpaid leave for the birth or adoption of a child, has
worked as Congress intended, resulting in few challenges for
either employees or employers.
Key aspects of the regulation governing the medical leave
provisions, however, which provide 12 weeks of unpaid leave for
an employee to care for a close family member with a serious
health condition or to recover from their own serious illness,
have drifted far from the original intent of the act, creating
challenges both for the employers and employees.
H.R. professionals have struggled to interpret various
provisions of the FMLA, including the definition of a serious
health condition, intermittent leave, and medical
certification.
Madam Chair, challenges with FMLA implementation have been
well documented over the last several years and, as such, SHRM
believes policymakers should address the underlying problems
both employers and employees encounter with the FMLA. To this
end, SHRM was pleased with the recent FMLA proposal by the
Department of Labor.
While a number of the changes proposed by the DOL will
certainly improve FMLA implementation, particularly the medical
certification process, the society believes the proposal fell
short in two key areas: The proposed regulation fails to
significantly improve the definition of a serious health
condition, and there still are no meaningful tools available
for employers to effectively manage misuse of unscheduled
intermittent leave. These are important issues that are
fundamental to effective FMLA administration and, as such,
Congress should strongly consider policy options to remedy
these challenges.
SHRM shares Congress's interest in providing families
additional work flexibility, but we are concerned about
proposals to expand the FMLA Act given the problems
administering current FMLA leave. While well intentioned,
proposals that build on a flawed FMLA framework will only
exacerbate the significant challenges both employers and
employees currently encounter.
SHRM also has serious concerns about proposals that mandate
paid leave. While many employers offer generous voluntary paid
leave benefits to better assist employees in balancing work and
personal needs, it is important to remember that paid leave
benefits are only one element of the employee's total
compensation package, and employers have a finite pool of
compensation dollars.
Employers, not the federal government, are best situated to
know the benefit and compensation needs of their employees and,
as such, a one-size-fits-all paid leave mandate really
restricts an employer's flexibility in designing and
implementing employee benefit plans, which oftentimes will work
against employees.
Therefore, SHRM respectfully requests that Congress fix the
documented shortfalls of the FMLA before considering additional
leave mandates that curtail an employer's flexibility.
In conclusion, SHRM does applaud the subcommittee's
examination of the FMLA to guage whether this leave law is
meeting the needs of both employees and employers and
appreciates the opportunity to provide this testimony on this
important leave statute. The society looks forward to working
with the subcommittee to craft practical workplace flexibility
policies that meet the needs of employees, families, and
employers.
And thank you again for inviting me here today, and I look
forward to answering your questions.
[The statement of Ms. Cossette follows:]
Prepared Statement of Brenda Cossette, Human Resources Director, on
Behalf of the Society for Human Resource Management
Chairwoman Woolsey, Ranking Member Wilson and distinguished members
of the Subcommittee, my name is Brenda Cossette and I am the Human
Resources Director for the City of Fergus Falls, Minnesota. I commend
the subcommittee for holding this hearing on the Family and Medical
Leave Act (FMLA) and I appreciate the opportunity to provide testimony
to you today.
By way of background, I am a certified senior professional in human
resources with over 25 years experience in human resource management.
My experience includes work in government, manufacturing, banking,
wholesale/retail grocery as well as health care. In my current role, I
manage the Human Resource function for the City of Fergus Falls,
Minnesota, ensuring compliance with state and federal laws, negotiating
and administering four labor contracts as well as establishing and
administering internal policies and procedures, including the Family
and Medical Leave Act.
I appear today on behalf of the Society for Human Resource
Management (SHRM), of which I am a member. SHRM is the world's largest
professional association devoted to human resource management. Our
mission is to serve the needs of HR professionals by providing the most
current and comprehensive resources, and to advance the profession by
promoting HR's essential, strategic role. Founded in 1948, SHRM
represents more than 225,000 individual members in over 125 countries,
and has a network of more than 575 affiliated chapters in the United
States, as well as offices in China and India.
It is important for you to know that do I not sit before you today
as merely an HR professional who has administered the FMLA since it was
enacted in 1993, but as an employee who is personally benefited from
the Act's provisions. I have been diagnosed with breast cancer, have
had two separate surgeries, and am currently undergoing chemotherapy.
With cancer as a chronic condition, my need to use FMLA leave continues
on an intermittent basis. The benefits afforded under the FMLA allow me
to take time off as necessary for my treatments and for the often
unpredictable complications of chemotherapy. The FMLA allows me to take
time off without any accompanying stress or anxiety about my absence
from the workplace.
Given my personal familiarity with the FMLA, my perspective on the
issues before us today is based on real experience, tempered with an
appreciation for the needs and concerns of employers in my home state
of Minnesota. Thank you for giving me an opportunity to share my
personal and professional experiences with you.
In addition, SHRM is uniquely positioned to provide insight on
workplace leave policies. The Society's membership is comprised of HR
professionals who are responsible for administering their employers'
benefit policies, including paid time-off programs as well as FMLA
leave. On a daily basis, HR professionals must determine whether an
employee is entitled to FMLA leave, track an employee's FMLA leave, and
determine how to maintain a satisfied and productive workforce during
the employee's FMLA leave-related absences.
FMLA Overview
Both employers and employees benefit from workplaces that foster
and support an appropriate balance between work and family demands, and
the Family and Medical Leave Act was premised on this principle. And
while I believe that HR professionals work diligently to assist
employees in striking this balance, after 15 years of experience
administering FMLA leaves, I am confident this important statute is in
need of modest, yet important fixes to ensure that it serves the best
interests of both employees and employers.
Family Leave Working as Congress Intended
Undoubtedly, the Family and Medical Leave Act has helped millions
of employees and their families since it's enactment in 1993, and as an
HR professional, I have personally witnessed employees reap the
important benefits afforded under this law. For the most part, the
family leave portion of the FMLA--which provides up to 12 weeks of
unpaid leave for the birth or adoption of a child--has worked as
Congress intended, resulting in few challenges for either employers or
employees. As evidenced in the 2007 SHRM Survey FMLA and Its Impact on
Organizations, only 13 percent of respondents reported challenges in
administering FMLA leave for the birth or adoption of a child.
When my son was born over 23 years ago, I did not have FMLA leave
protection, which caused me some anxiety as I had a complicated
delivery and premature infant, requiring me to take three months of
leave as well as more time to deal with the respiratory complications
that came with a premature infant. I personally believe that FMLA is a
wonderful benefit for working men and women who have families, as they
can take leave for the birth or adoption of a child without angst over
losing their job or benefits. FMLA leave allows a new parent to take
time to adapt to their parenting role and bond with their child, and
this would not be easily done if they had to worry about their job or
benefits.
Medical Leave Challenges
Key aspects of the regulations governing the medical leave
provisions, however, have drifted far from the original intent of the
Act, creating challenges for both employers and employees. In fact, 47
percent of SHRM members responding to the 2007 SHRM FMLA Survey
reported that they have experienced challenges in granting leave for an
employee's serious health condition as a result of a chronic condition
(ongoing injuries, ongoing illnesses, and/or non-life threatening
conditions). HR professionals have struggled to interpret various
provisions of the FMLA, including the definition of a serious health
condition, intermittent leave, and medical certifications.
HR professionals have two primary concerns with the Act's
regulations: the definitions of ``serious health condition'' and
``intermittent leave.'' For example, with regard to the definition of
serious health condition, the Department of Labor (DOL) issued a
statement in April 1995 advising that conditions such as the common
cold, the flu, and non-migraine headaches are not serious health
conditions. The following year, however, the DOL issued a statement
saying that each of these conditions could be considered a ``serious
health condition.'' Practically any ailment lasting three calendar days
and including a doctor's visit, now qualifies as a serious medical
condition (due to DOL regulations and opinion letters). Although
Congress intended medical leave under the FMLA to be taken only for
serious health conditions, SHRM members regularly report that
individuals use this leave to avoid coming to work even when they are
not experiencing a serious health condition.
Furthermore, HR professionals encounter numerous challenges in
administering unscheduled, intermittent leave. It is often difficult to
track this type of leave usage, particularly when the employee takes
FMLA leave in small increments. Unscheduled, intermittent leave also
poses significant staffing problems for employers. When an employee
takes leave of this nature, organizations must cover the absent
employee's workload by reallocating the work to other employees or
leaving the work unfinished. For example, 88 percent of HR
professionals responding to the 2007 SHRM FMLA Survey Report indicated
that during an employee's FMLA leave, their location attends to the
employee's workload by assigning work temporarily to other employees.
In most cases, it is not cost-effective to use temporary staff because
the period to train a temporary employee is sometimes longer than the
leave itself. Furthermore, employers typically do not receive
sufficient advance notice regarding an employee's need for FMLA leave,
thereby making it difficult to obtain temporary help on short notice.
In addition to staffing problems, ``intermittent leave'' (as
defined in the FMLA regulations) has resulted in numerous issues
related to the management of absenteeism in the workplace. The most
common challenge HR professionals encounter in administering medical
leave, for example, is instances in which an employee is certified for
a chronic condition and the health care professional has indicated on
the FMLA certification form that intermittent leave is needed for the
employee to seek treatments for the condition. This certification in
effect grants an employee open-ended leave, allowing leave to be taken
in unpredictable, unscheduled, small increments of time. The ability of
employees to take unscheduled intermittent leave in the smallest time
units that the employer uses, often one-tenth of an hour or six
minutes, means that employees can rely on this provision to cover
habitual tardiness. While serious health conditions may well require
leave to be taken on an intermittent basis, limited tools are available
to employers in order to determine when the leave is in fact
legitimate. As a result, 39 percent of HR professionals responding to
the 2007 SHRM FMLA Survey Report indicated that they granted FMLA leave
for requests that they perceived to be illegitimate.
15 Years Later--FMLA Clarifications Necessary
The challenges outlined above have been well-documented over the
last several years most notably in numerous congressional hearings,
agency stakeholder meetings and through submissions to the DOL Request
for Information on the FMLA regulations. SHRM supports the goals of the
FMLA and wants to ensure that employees continue to receive the
benefits and job security afforded by the Act. However, given the
significant challenges HR professionals continue to experience with
FMLA administration, SHRM respectfully suggests that policymakers take
steps to address the underlying problems both employers and employees
encounter with the FMLA.
Last year the DOL completed a thorough review of the effectiveness
of the FMLA regulations in which the Department received over 15,000
comments from employers, employees and other interested organizations.
The June 2007 DOL Report on the FMLA noted that in many instances, when
it comes to the ``family'' portion of FMLA, the regulations are
basically working as Congress intended with few concerns for employers
or employees. However, the report also highlighted that in other areas,
particularly in the ``medical'' leave portions of the regulations,
differing opinion letters, federal court rules and regulator guidance
have clouded and sometimes undermined key provisions of the FMLA. As
outlined above, these findings accurately reflect the cumulative
experiences of HR professionals who have been administering FMLA leave
for the last 15 years.
As you know, the Department's review of the FMLA regulations
culminated in the publication of a Notice of Proposed Rulemaking (NPRM)
to update the Family and Medical Leave Act regulations on February 11,
2008. The comment period for this NPRM closes on April 11, 2008, and
SHRM will provide a copy of our comment submission for the hearing
record.
In short, while SHRM appreciates a number of the changes proposed
by the DOL, particularly the medical certification process, the Society
believes the proposal fell short in two key areas--the proposed
regulation fails to significantly improve the definition of a serious
health condition and there still are no meaningful tools available for
employers to effectively manage misuse of unscheduled intermittent
leave or to address many of the unintended consequences of the existing
regulations. These are important issues that are fundamental to
effective FMLA administration and as such Congress should strongly
consider policy options to remedy these challenges.
Despite these shortcomings, SHRM believes this regulatory action is
an important step toward restoring the balance intended by Congress
between employers' business needs and employees' need for time to
attend to important family and medical issues. After all, the original
purpose of the FMLA, as envisioned by Congress, will never be fully
realized until both the employee and employer communities feel
comfortable in their determination that an employee is rightly entitled
to FMLA leave.
FMLA Expansions
While SHRM shares Congress' interest in providing families
additional work flexibility, we are concerned about proposals to expand
the Family and Medical Leave Act, including paid leave mandates, given
current problems implementing FMLA leave. As outlined above, there is
already a lengthy record of problems with administering leave under the
Act due to confusing and inconsistent regulations. While well
intentioned, proposals that build on a flawed FMLA framework will only
exacerbate the significant challenges both employers and employees
currently encounter.
SHRM also has serious concerns about proposals that mandate paid
leave. As members of the Subcommittee know, in addition to the benefits
afforded workers under the FMLA, many employees are also eligible for
paid-time-off benefits provided by their employer. In fact, many
employers offer generous voluntary paid leave benefits to better assist
employees in balancing work and personal needs as paid leave programs
are a key recruitment and retention tool. However, paid leave benefits
are only one element of an employee's total compensation package that
includes not only wages but often retirement benefits, health care
coverage, and other benefits. To meet business objectives, employers
have a finite pool of compensation dollars. At the same time, costs
associated with complying with various federal and state mandates
continue to rise along with the cost of offering employee benefit
plans, consuming a larger portion of the compensation pool, thereby
limiting resources for wage increases and other important benefits such
as paid-time-off programs. SHRM believes that employers, not the
federal government, are best situated to know the benefit and
compensation needs of their employees. As such, ``one-size-fits-all''
paid leave mandates restrict an employer's flexibility in designing and
implementing employee benefit plans, which often times works against
employees. Therefore, SHRM respectfully requests that Congress fix the
documented shortfalls of the FMLA before considering additional leave
mandates that curtail an employer's flexibility, including paid leave
proposals.
Conclusion
SHRM applauds the Subcommittee's examination of the Family and
Medical Leave Act to gage whether this leave law is meeting the needs
of both employees and employers and appreciates the opportunity to
provide testimony on this important leave statute. As noted earlier, HR
professionals and their organizations are committed to both the proper
application of the FMLA in the workplace as well as assisting their
employees in balancing their work and family demands. The Society looks
forward to working with the Subcommittee to craft practical workplace
flexibility policies that meet the needs of employees, their families,
and employers.
______
Chairwoman Woolsey. Thank you.
Ms. Ness?
STATEMENT OF DEBRA NESS, PRESIDENT, NATIONAL PARTNERSHIP FOR
WOMEN AND FAMILIES
Ms. Ness. Good afternoon, Congresswoman, Congressmen. Thank
you for holding this hearing.
I am Debra Ness, president of the National Partnership for
Women & Families, and for more than 3\1/2\ decades, we have
been working on issues important to women and families, and we
are proud of our history as the organization that led that 9-
year campaign for the Family and Medical Leave Act, and, today,
we lead a coalition of more than 200 groups who are working to
defend and expand the Family and Medical Leave Act.
As everyone has noted, this is the 15th anniversary of the
FMLA, and in our mind, its enactment was truly a watershed
moment for working families because it was more than just the
law. It profoundly changed our culture and our expectations of
the workplace, and it has demonstrated that family-friendly
policies are good for businesses as well as for workers and
their families.
Many of us here today, but most particularly Congresswoman
Schroeder, were instrumental in winning the passage of the
FMLA. We overcame a lot of scare tactics--businesses claimed
that the law would be the end of them--but 15 years later, the
FMLA is well established and businesses have flourished.
And it is important for us to remember those scare tactics
when we talk about expanding the law because opponents will use
them again and again, and we have to keep in mind that they are
today what they were then, unfounded claims, and if we summon
the courage to move forward, we will prove once again that
family-friendly policies work well for everyone.
This anniversary is especially sweet for us because it is
also the year that marks the first time the FMLA has been
expanded, and, Congresswoman, thank you for holding the
important hearing last fall that helped lead to the fact that
today military families can use the FMLA for up to 26 weeks to
take care of soldiers injured in combat. We are thrilled that
this law has been expanded to help families that have
sacrificed so much for our country.
But, at the same time we celebrate that victory, we are
also deeply concerned about efforts to chip away at the
progress we have made. As we all know, comments are due
tomorrow on the regulatory changes proposed by the Department
of Labor, and we, of course, will submit comments, and, once
again, we will put forth comprehensive evidence that the FMLA
is working well.
In fact, it is estimated that FMLA has been used
approximately 100 million times by workers since its passage,
and, for the most part, the FMLA is accepted by employers, and
in the department's own words, ``They are pleased to observe
that in the vast majority of cases, the FMLA is working as
intended.''
Yet the changes that are proposed in our mind really begin
to upset the careful balance that the FMLA strikes between the
needs of employers and the needs of workers. If the regulations
are enacted, workers will find that they have to give more
notice, they have to provide more information, they have to
have more medical examinations, and they have to respond to
employer requirements in a shorter timeframe.
Employers, on the other hand, will have more time to
respond to requests for FMLA leave and more ways to delay or
deny it. We are especially concerned that the regulations will
make it more difficult for workers to use their own earned paid
leave while they are on FMLA and that it will increase the
direct contact that employers have with their employees'
medical providers.
So we believe these proposals actually go in the wrong
direction. Instead of limiting employees' access to Family and
Medical Leave, we should be exploring ways to build on it and
to expend its protections to more families. Right now, as we
all know, about 40 percent of workers in this country are not
even covered by the law, and millions more workers who
desperately need to use it do not take it because they cannot
afford to take unpaid leave.
So there are many things we can do. We need to expand the
FMLA so that it covers all workers. We need to make it possible
for workers to take time off for critically important things
like meeting with a child's teacher or obtaining needed
services to deal with domestic violence. We should be able to
allow workers to take time off for other family members, like
grandparents and siblings, adult children, domestic partners,
and as Ms. Hunt just pointed out, we need to fix the FMLA so it
covers flight attendants.
But perhaps most urgently, we need to provide some kind of
income support for workers when they take leave. You know, so
many lawmakers speak passionately about building a nation that
values families, but millions of workers cannot take care of
their families because they just cannot miss a paycheck and
still manage to make ends meet. We can change that.
California was the first state to pass a paid family leave
law, Washington State last year became the second, and I think
it is really exciting that this week New Jersey becomes the
third state. But we cannot wait for 47 other states to do the
same. We need a national paid leave law, and, Representative
Woolsey, I know this is something that you are working on. I
know you are aware that Senators Dodd and Stevens have
introduced a bipartisan bill in the Senate and that
Representatives Stark and Miller are planning to introduce a
companion bill here in the House. This family leave insurance
bill really needs to be passed.
There is just one more thing that I want to add here, and
that is it is important for us to remember that FMLA coverage
is limited to serious, long-term illnesses. It does not help
when you are dealing with a common illness like the flu or you
need to go for routine medical care like your mammogram or your
colonoscopy.
Millions of workers are out of luck when they need that
kind of care, and that is because almost half of our workforce
does not have a single paid sick day. They either go to work
sick or they send a sick child to school because they do not
have a choice. The Healthy Families Act, which has been
proposed in both the House and the Senate, would guarantee
workers 7 paid sick days a year in businesses with 15 or more
employees. It is already working in San Francisco. It is about
to become law here in the District, and we really need to adopt
this as a minimum labor standard nationwide.
So, in closing, I would just echo something that
Congresswoman Schroeder said. Our workplaces are terribly out
of sync with the realities that working families face today. We
do not, for the most part, in our families, have full-time
caregivers at home. We lag shamefully behind other countries
when it comes to taking care of our families, and we can do
better.
So there are two things: Let's expand the Family and
Medical Leave Act, and let's set a minimum standard for paid
sick days for all workers so that workers do not have to choose
between their families, their health, or their jobs.
Thank you very much.
[The statement of Ms. Ness follows:]
------
Chairwoman Woolsey. Thank you--all of you. This was a great
group of witnesses.
Congresswoman Schroeder has to leave in just a few minutes,
and I get to go first because I am the Chair of the
subcommittee. So I am going to ask you a couple of
straightforward questions, no surprise to anybody.
Given that the department is not using empirical data for
their changes, I mean, admittedly so, so I am not asking you,
Congresswoman, to use empirical data, but tell us if you will,
what you would do to build on what we have learned over the
last 15 years regarding bridging work and family and making the
Family and Medical Leave Act more meaningful and erasing the
embarrassment that the richest nation in the world cannot take
care of their working families.
Ms. Schroeder. Well, I thank you very much for that
question, and I could give you a book. But, obviously, I really
think when you look at what is covered by the federal
government, there are all sorts of different standards. But 50
employees is a very high standard. I honestly think it should
go way down to cover many more. Obviously, the smallest of the
small cannot be covered, but it seems to me that 25 or 20 can
be covered.
I think we do need to have 18 weeks. Most pediatricians
talk about 4 months for bonding at least, minimum, and we do
not have that. I think we do need to look at how to pay for
this somehow so people can use it and so forth. I mean, there
is a whole list. I think the intermittent is terribly important
because of cancer patients and so forth. We went through that
and vetted that very carefully.
Now I know that some employers will say, ``Well, this is
very hard, and people cheat'' or ``They do this.'' Well, you
know, they may be stealing paper clips, and they may be doing
other things. That is a management problem in that company. I
think that most employers have found this works very well and
that people are so relieved that they have this benefit that
they do not abuse it. I am an employer of, you know, 50 people,
and people do not abuse it. They really are very happy to have
it, and, you know, part of it is your H.R. provisions and
making sure that everybody understands what they are and that
you are going to play by the rules.
But, to me, when you look at it, as I say, every developed
nation has done so much more, and I do not understand why we
have not done more, and I just cannot thank you enough for
having these hearings 15 years later to say, ``Let's go.'' It
is amazing to me as a politician because everybody got so
excited when it passed and everybody talks about how wonderful
it was, and yet nothing else got added to it until just
recently. So it is a disconnect, and I think it is time to
connect it.
Chairwoman Woolsey. Well, Ms. Ness, what do we do for the
employee who works for a company with two or three employees? I
mean, should that person not have----
Thank you, Congresswoman. Thank you very much.
Should those workers not have any protection?
Ms. Ness. Well, you are talking to somebody who believes
that these protections should be basic labor standards
available to all workers.
You know, I think we need a paradigm shift in this country.
I think for too long we have thought about these kinds of work-
family policies as luxury benefits. They are not. These
policies make the difference between economic survival and
economic disaster for families in this country, and so we need
to take into account the fact that in most families both
parents are working. We do not have caregivers at home.
If we really value our families, if we really believe they
are the backbone of our country, if we really believe that
strong families are a necessary ingredient to a strong economy,
then we need to extend these kinds of benefits as basic, basic
labor protections to all workers.
Chairwoman Woolsey. Thank you.
I yield now to Mr. Wilson.
Mr. Wilson. Thank you, Madam Chairman.
Ms. Cossette, thank you for your very enlightening
testimony. You certainly have a unique perspective on the FMLA,
both as an employee who has personally benefited from its
coverage and as a human resources professional who has
confronted the day-to-day issues related to the administration
of the act.
You noted in your written testimony the need to undertake
some modest yet important fixes to ensure that the FMLA serves
the interests of both employees and employers alike. It is
important for us as we contemplate the state of the law to take
into account the need to balance the interests on both sides.
In your experience, has that balance changed over the
years?
Ms. Cossette. I think that over the years, as we have
experience with it, I do not know that the balance has changed
dramatically, although there have been some difficulties in
administering it and that, of course, it falls more on the
employers' side, but I think, at this time, we are not looking
that anybody has any leave taken away from them. We think it is
important that it works as Congress intended, and we do not
want leave taken away from them.
But, you know, SHRM supports the DOL's proposal to update
the regulations, but there are some elements of it that we
think that would improve FMLA implementation, and there are two
basic areas, and the first is really to get a clarification of
what constitutes a serious health condition, and that is really
been something over the last 15 years that has made it more
difficult because so many things become a serious health
condition under the law now, anything that requires you to be
out at least 3 days and see a medical professional. That can be
anything.
Second, the proposal does not address the size of
increments of intermittent leave that can be taken, even though
even according to the testimony from the DOL today, no issue
received more substantious commentary to the Request for
Information than the employees' use of unscheduled intermittent
leave. So those are two areas that I think Congress may need to
address, both intermittent leave and the definition of serious
health conditions.
Mr. Wilson. Additionally, in your testimony, you spoke
about the numerous challenges that human resources
professionals face in administering unscheduled, intermittent
leave. It must be difficult to keep track of this type of leave
usage, especially when taken in small increments.
It would seem that the administrative and scheduling issues
presented by this type of leave would be the most challenging
part of the FMLA, particularly for smaller businesses. Could
you elaborate on issues that employers face when tracking time
in very small increments?
Ms. Cossette. Well, I will try to do that for you. The
difference really between the type of unscheduled intermittent
leave that I am using in order to recover from my treatments
and the unscheduled intermittent leave that really creates the
challenges for employers is, you know, when you have
unscheduled intermittent leave, but you are still undergoing a
regiment of treatments, it is more expected by the employer
rather than those that are just intermittent because they have
had a certification that allows them for an entire year to just
have intermittent leave when they choose to have it, and I have
no idea as an employer when that is going to happen. It makes
it difficult to schedule someone to replace them.
We do understand there are emergencies. There are always
medical emergencies. We understand that. But I think there are
some--this is an area where inappropriate use of FMLA is
happening, and that is our challenge.
Mr. Wilson. And I want to commend your profession, human
resources. I frequently--I am sure Congresswoman Woolsey does,
too--will go and visit different plants and office buildings
and facilities, and, invariably, the brightest-looking person,
full of enthusiasm, is H.R., and then I appreciate the
opportunities they give to persons and then the recommendations
they make to other businesses in the event that they are not
applicable where they apply. So your profession is
extraordinary.
And one final note as I conclude, Ms. Lasco. One of my sons
is an assistant prosecutor, and so I know the time that is
required, and I really admire it. And your baby was cute as a
button. So you are obviously doing very well professionally and
with your family. God bless you.
Thank all of you for being here.
Ms. Lasco. Thank you.
Chairwoman Woolsey. Congressman Hare?
Mr. Hare. Thank you, Madam Chair.
Ms. Lasco, let me just give you a comment from a
perspective. My father died shortly before my son was born,
and, you know, he did not get a chance to see him, but I just
want to say, you know, you talked about your mother leaving a
gift, and I just want you to know that from my perspective, she
left a wonderful gift for your grandson, that was you, and I
appreciate everything that, you know, you do and how hard it is
to have that balance.
Ms. Hunt, I just wondered--Tim Bishop asked me if I would
try to fill in for him on it because he is the author of H.R.
2744, and I just have a couple of questions for you. I am proud
to be a co-sponsor of it. Does your company have any paid leave
policies?
Ms. Hunt. No.
Mr. Hare. You have none. So maybe could you describe for us
what it is like to be on call?
Ms. Hunt. On call is a reserve flight attendant, and they
are on call about 20 days a month, and they have to be at the
airport in as short amount of time as an hour, so they cannot
get another job. They are on duty for US Airways, or whatever
airline, for 20 days a month. So they are considered full-time
and they are paid as full-time because they are unable to look
for other compensation during those 20 days.
Mr. Hare. So, just to clarify, there is no partial pay or
supplemental wages for all the extra hours for the flight
attendants that are on call?
Ms. Hunt. No.
Mr. Hare. None?
Ms. Hunt. None at all.
Mr. Hare. And then just my last question for you would be:
How would H.R. 2744 make your situation different for all those
employees that we are talking about here?
Ms. Hunt. I think it is a huge stress reliever to know that
your job is going to be there and also that you do not have to
constantly be negotiating, juggling your schedule, trying to
make this work out, and being able to be there for your family
member or for yourself and not have to be concerned about the
job being there.
Mr. Hare. And, Ms. Ness, if I could, just two quick
questions. We have had some--I believe Ms. Cossette testified
that mandated paid family medical leave might be detrimental,
and I wondered if you would, you know, care to comment on it.
Do you think the claim is legitimate, and if not, why not?
And then my second question to you is: How would you
respond to the claim that paid leave legislation is not needed
because the employers are best situated to know what to do and
what benefits to compensate their employees by?
Ms. Ness. Okay. Could you just repeat the last part of the
first question? I did not hear the actual question.
Mr. Hare. Sure. I believe Ms. Cossette testified that
mandating paid family medical leave would be detrimental, and I
wanted to know from your perspective do you think that claim,
you know, is legitimate, and if not, why not?
Ms. Ness. Okay. Well, I will start by saying that the
claims of detriment to business are familiar. They are very
similar to the claims we heard back in the early 1980s when we
first started working on the Family and Medical Leave Act. They
are the same claims that we hear any time we propose a move
forward in terms of work family policies. They are the same
claims we hear when we talk about paid sick days.
To my knowledge--and I think if you look at the track
record of the Family and Medical Leave Act--you will not see
that those claims have materialized. It did not hurt
businesses. Workers did not lose their jobs. Employers did not
cut back on benefits. In fact, after the Family and Medical
Leave Act, we entered a thriving period in our economy.
So I think they are legitimate fears, but I think that
those fears do not come to pass, and we cannot allow ourselves
to be held back from moving forward because of those fears.
I think it would be nice if every employer provided these
benefits voluntarily. I think many employers are doing the
right thing. I think many are model employers. I think many are
doing what they think is good for workers, but also what they
think is good for the bottom line because there is lots of
evidence that these policies are not just good for workers and
their families. They are also good business sense.
But, unfortunately, not all employers do the right thing,
and some employers are shortsighted, and so while it do not
necessarily make good economic sense to refuse to provide these
kinds of benefits, unfortunately, too many employers do, and
that is why I think we need these laws.
Mr. Hare. And then just one quick question just for
statistical purposes: You said what percent of workers have
absolutely no paid leave at all?
Ms. Ness. About half of all workers in this country do not
have a single paid sick day, and when you look at low-wage
workers, it is almost 80 percent.
Mr. Hare. That is incredible. Well, we can do much better
than that. We are going to.
Ms. Ness. We definitely could.
Mr. Hare. I appreciate your all coming. Thank you.
I yield back.
Chairwoman Woolsey. Congresswoman Shea-Porter?
Ms. Shea-Porter. Thank you.
Ms. Ness, I am a big advocate for privacy, and when I read
through your testimony, I was very concerned. One of the
proposed changes deals with the manner in which an employer can
contact an employee's health care provider, and the changes
that you mentioned in your testimony with respect to this issue
are of particular concern to me, and I would imagine that these
concerns are shared by most Americans.
This is fundamentally, I think, an issue of privacy. Can
you go into more detail on the specific change and the chilling
effect that allowing for direct employer-doctor contact will
have both from the perspective of the single proposal and then
also within the context of the other changes that are proposed?
Ms. Ness. Well, I am sure I do not need to tell you how
concerned people are about privacy these days. It seems like we
are constantly hearing about breaches in privacy and people's
confidential information. When it comes to confidential medical
information, those concerns are really off the charts.
People are very worried about their personal private
medical information getting into the wrong hands or being used
inappropriately, and most people will tell you they do not want
their employers to have any more access to their medical
history or any more contact with their medical providers than
absolutely necessary.
I think the troubling thing about the proposed changes in
the regs is that while it is true that the employee has to sign
a HIPAA release, if you do not do that, you do not get your
Family and Medical Leave. So, yes, you have to give consent for
the employer to get the information from your medical provider,
but if you do not, you do not get the benefit. So I think many
employees feel like that is not much of a choice.
I think the other problem is that we have now made it
possible for employers to talk directly with medical providers
as opposed to there being a medical professional as an
intermediary. Again, you are putting the employer one step
closer to being able to get medical information, and people are
very nervous about how that information could be used in the
workplace.
Ms. Shea-Porter. Thank you, and that is exactly my concern.
Can you think of any good reason they proposed this instead of
allowing doctor-to-doctor relationships and correspondence
there to make it so that somebody's employer can now speak
directly? What do you think the reason for that was?
Ms. Ness. I am assuming that from an employer point of
view, it is an opportunity to streamline the process and
potentially the elimination of the expense of having a health
care professional be in an intermediary role, but I balance
that against the enormous risks and the enormous harm that can
be caused people if their medical information is used
inappropriately or gets into the wrong hands.
Ms. Shea-Porter. I agree with you.
And thank you.
Chairwoman Woolsey. Mr. Wilson?
Mr. Wilson. Madam Chairwoman, I have a unanimous consent
request that the Request for Information and a copy of the
Notice of Proposed Rulemaking be put in the hearing record.
Chairwoman Woolsey. Without objection.
[The information follows:]
[Federal Register, 29 CFR Part 825, Family and Medical
Leave Act Regulations: A Report on the Department of Labor's
Request for Information; Proposed Rule, appears at the
following Internet address:]
http://www.dol.gov/esa/whd/FMLA2007FederalRegisterNotice/07-3102.pdf
______
[The Department of Labor's proposed rules change in the
FMLA, dated February 11, 2008, appears at the following
Internet address:]
http://www.dol.gov/esa/whd/fmla/FedRegNPRM.pdf
______
Chairwoman Woolsey. Well, thank you all for being here.
I particularly want to thank Assistant Secretary Lipnic.
You were here the whole time. This does not happen. Thank you
very much. And I respect you for staying, and I thank you for
staying.
Now I also want to thank the mother of FMLA, Congresswoman
Pat Schroeder, for being here and taking her time.
But I would like to remind everybody that in 1993 when we
passed FMLA, that was following the election that was the year
of the woman. That was actually my first year here in Congress,
and I would like you to look at each other, who has been up
here testifying before us, including our Assistant Secretary,
all wonderful women, and that is because without a doubt
whatever we do with FMLA affects women more than anybody else.
But this is not just a women's issue. It is a family issue.
So thank you for what you have provided us. We have to learn
from the last 15 years and build upon it, not take away from
it, and all of you have helped us very much going in the right
direction.
Thank you very much.
Oh, wait. I have other things to say. [Laughter.]
I have my script.
As previously ordered, members will have 15 days to submit
additional materials for the hearing record.
Any member who wishes to submit follow-up questions in
writing to the witnesses should coordinate with the majority
staff within 15 days.
Without objection, this hearing is adjourned.
[Letter from the American Association of University Women,
dated April 8, 2008, submitted by Ms. Woolsey follows:]
American Association of University Women,
April 8, 2008.
Chairwoman Lynn Woolsey, Ranking Member Joe Wilson,
Subcommittee on Workforce Protections, Committee on Education and
Labor, Rayburn House Office Building, Washington, DC.
Dear Chairwoman Woolsey and Ranking Member Wilson: On behalf of the
more than 100,000 bipartisan members of the American Association of
University Women, I write to share AAUW's comments for the April 10,
2008 Subcommittee on Workforce Protections hearing, ``The 15th
Anniversary of the Family and Medical Leave Act: Achievements and Next
Steps.''
AAUW strongly supports the Family and Medical Leave Act, and is
concerned that the Notice of Proposed Rulemaking and Request for
Comments (NPRM) issued on February 11, 2008 is a sign that the U.S.
Department of Labor is considering regulatory changes that would roll
back the FMLA's protections or narrow the scope of its coverage. AAUW
supports regulations that ensure workers can take full advantage of
their FMLA protections, and strongly opposes any changes that would
limit the scope of the FMLA.
AAUW's Support for the Family and Medical Leave Act
AAUW believes that creating work environments that help employees
balance the responsibilities of work and family is good public policy--
good for workers, good for families, and good for business. AAUW's
member-adopted 2007-2009 Public Policy Program supports family and
medical leave policies, which for women are critical to ``equitable
access and advancement in employment.''\1\ AAUW efforts in this area
include long term advocacy from 1983 to 1992 to pass the Family and
Medical Leave Act, which was finally signed into law in 1993.
The FMLA is a groundbreaking law that helps employees balance the
increasing demands of work and family at little or no cost to
employers. More than 50 million covered and eligible employees have
used the FMLA to take care of themselves and their families during
times of critical need without jeopardizing their health insurance
benefits or job security.\2\
In January 2001, the bipartisan Commission on Family and Medical
Leave released a study reporting that almost 90 percent of covered
employers said that complying with the FMLA brought no or minimal
increase in their administrative costs.\3\
Further, while the vast majority of employers reported the FMLA had
no impact on business practices, productivity, and outcomes, some
employers reported cost savings associated with lowered employee
turnover, as well as improved employee morale.\4\
By making leave available to all eligible workers, the law has
enabled both women and men to balance their work and family obligations
without sacrificing long-term economic stability. The law also helps
combat gender discrimination and insidious stereotypes about gender
roles--because both male and female workers can take FMLA leave, the
law helps to ensure that women are not penalized or unfairly denied job
opportunities simply because of assumptions about their family
caregiving responsibilities.
The FMLA is a real success story: it ensures that America has
productive and successful workers and healthy and secure families.
However, in the fifteen years since the law's passage, some clear areas
for improvement have emerged. One of the biggest challenges in FMLA
coverage clearly arises from its unpaid status. For example, 78 percent
of eligible employees who have needed FMLA-covered leave have not been
able to take it because they could not afford it.\5\
AAUW believes we should be putting our energy into expanding the
FMLA to cover more workers, and into making paid family and medical
leave and paid sick days available to all.
Context of Notice of Proposed Rulemaking and Request for Comments
(NPRM)
AAUW has included comments in response to the NPRM below. However,
these comments must be placed in context by outlining several
overarching concerns AAUW has about the NPRM itself.
Any examination of the FMLA should focus squarely on how to ensure
vigorous FMLA enforcement and compliance with the law, and to identify
ways to expand the law to more workers in need of the FMLA's
protections. AAUW is concerned that the NPRM is more focused on
imposing limits or constraints on the FMLA, rather than full
enforcement and compliance. This approach, if pursued, will impede the
ability of workers to use the FMLA effectively to balance their work
and family responsibilities, and will result in the erosion of the
FMLA's core protections. It is crucial for the U.S. Department of Labor
to demonstrate a clear and consistent commitment to comprehensive
implementation and enforcement of the FMLA.
In addition, the lack of available data is an unfortunate reminder
of U.S. Department of Labor's own failure to conduct objective studies
on the FMLA and its implementation in recent years. The Request for
Information from 2007 took great pains to criticize the 2000 study of
the FMLA undertaken by Westat and commissioned by the department
(``2000 Westat Study''). But the 2000 Westat Study, even with its
limitations, has been invaluable and represents the best available
source for information on FMLA usage and coverage. The department has
neglected to undertake significant efforts to update this research,
thus leaving an information void. While the 2007 Request for
Information solicited data from the public on a long list of questions,
in many cases it is the U.S. Department of Labor that is best
positioned to gather the relevant data to provide answers. To pursue
changes to the FMLA regulations without such scientifically valid data,
however, is unwarranted and inappropriate.
AAUW has identified these core concerns at the outset to make clear
the inherent problems we believe are reflected in the NPRM that raise
questions about its utility and could be used to undermine vital FMLA
protections.
Responding to the NPRM: AAUW's Key Issues
Employee Eligibility
AAUW opposes any changes to the current eligibility standards that
would impose additional obstacles for workers seeking to take FMLA
leave. Existing eligibility rules were drafted to find the appropriate
balance between the needs of employers and employees. At a minimum, we
should preserve this balance and ensure that workers who meet the
requirements for leave are able to take it. To the extent that changes
to employee eligibility are under consideration, AAUW believes the
focus should be on ways to expand FMLA eligibility to cover more
workers who currently are unable to take leave when faced with a family
or medical emergency.
Serious Health Condition
AAUW opposes any regulatory changes that would scale back the
definition of ``serious health condition.'' The FMLA enables eligible
workers to take family or medical leave for serious health
conditions,\6\ and its regulations establish objective criteria to be
used to determine whether conditions qualify for leave.\7\ While the
regulations set parameters to help define these conditions, they do not
include an exhaustive list of conditions deemed ``serious'' or ``not
serious.'' As explained in the preamble of the FMLA regulations, the
U.S Department Labor ``did not consider it appropriate to include * * *
the `laundry list' of serious health conditions listed in the
legislative history because their inclusion may lead employers to
recognize only conditions on the list or to second-guess whether a
condition is equally `serious,' rather than apply the regulatory
standard.''\8\ The regulations are intended to create a reasonable
standard that can be applied with sufficient flexibility to adjust for
differences in how individuals are affected by illness--what can be a
serious life threatening illness for one individual can be a minor
illness for someone else.
The current regulations defining ``serious health condition''
reflect the practical reality that serious health conditions that
require family or medical leave can sometimes be of a fairly short
duration. Current FMLA regulations also appropriately acknowledge that
the relevant consideration for leave eligibility is the impact of the
medical condition on a worker's need for leave, and not the particular
diagnosis. The existing regulations properly define a serious health
condition by applying objective criteria to a worker's individual case,
including duration of the illness and number of treatments, rather than
categorically excluding any set of health conditions from FMLA
coverage. AAUW believes the current regulations are crafted
appropriately to provide guidance on what constitutes a serious health
condition without imposing overly rigid criteria that could hinder the
ability of workers to take leave when necessary.
Leave Flexibility
Regarding leave flexibility, AAUW believes the current regulations
addressing intermittent leave appropriately balance workers' need for
flexibility and employers' interest in having adequate staff to cover
their workplace needs. The NPRM unnecessarily clarifies what leave
qualifies for FMLA exchange. By making the transformability less
flexible, workers are penalized. Leave flexibility not only benefits
workers; it also benefits employers by maximizing workers' ability to
meet workplace demands in the face of family and health challenges.
AAUW supports the current regulations on intermittent leave.
The current regulations allowing for the substitution of paid leave
for FMLA leave are essential to workers' ability to exercise their
rights under the law. Permitting workers to use their accrued paid
leave during FMLA leave makes it possible for them to afford to take
time off to address critical family and medical issues. While the FMLA
has been an enormous gain for millions of workers, many employees have
been unable to make use of its benefits because the leave authorized
under the FMLA is unpaid. Thus, AAUW believes the provisions in the law
allowing employees and employers to substitute paid leave benefits for
FMLA leave in some circumstances are particularly important and should
remain in the regulations.
Medical Certification
AAUW opposes any changes to the medical certification regulations
that would impose unnecessary obstacles for workers seeking FMLA leave
and is disappointed with the proposed changes. The existing medical
certification regulations appropriately balance a worker's interest in
a manageable process that does not impose unreasonable burdens with the
employer's interest in accurate certification of the worker's medical
condition. Additionally, the regulations recognize that employer's
judgment regarding an employee's health condition should not be
substituted for the professional medical opinion of the employee's
health care provider. AAUW opposes any changes to the certification
requirements that would create unnecessary barriers and impose
unnecessary costs to workers who need to take FMLA leave.
Conclusion
The FMLA represents a critical step towards this country becoming a
nation that values working families, and more specifically, does not
discriminate against working women who provide the lion's share of
family caregiving. The law has been instrumental in enabling workers
across the country, in every occupation and industry, to take leave to
care for family members or themselves without putting their jobs, their
healthcare benefits, or their family stability at risk.
AAUW urges the U.S. Department of Labor to make strong FMLA
enforcement, support for existing FMLA regulations, and comprehensive
FMLA research key priorities. The department should require employers
to provide workers with adequate information regarding their rights and
responsibilities under the FMLA. Employers also should be required to
promptly inform workers when they are using their FMLA leave, and to
maintain records of FMLA leave balances. AAUW also strongly recommends
that the U.S. Department of Labor significantly increase efforts to
educate the public about the FMLA. The department should use this NPRM
process to publicly affirm its commitment to consistently and
vigorously uphold and enforce the FMLA, and begin this public education
process. AAUW strongly opposes any efforts to rollback the FMLA's hard-
won protections, and urges the department to reject any recommendations
in that direction.
AAUW will continue to oppose all efforts to weaken FMLA
protections, which would limit women's equal opportunity in the
workplace. AAUW will also work to advance policies that will improve
workplaces for employees with family responsibilities of all kinds.
Such protections and improvements are critical to women's employment
opportunities and economic security.
If you have any questions, please feel free to contact me at 202-
785-7720, or Tracy Sherman, government relations manager at 202-785-
7730. Thank you for the opportunity to submit comments for the hearing
on the important role of the FMLA.
Sincerely,
Lisa M. Maatz,
Director, Public Policy and Government Relations.
endnotes
\1\ 2007--09 AAUW Public Policy Program (approved July 2007).
\2\ National Partnership for Women and Families. All statistics
were compiled from the U.S. Department of Labor report, Balancing the
Needs of Families and Employers: Family and Medical Leave Surveys 2000
Update. http://www.nationalpartnership.org/portals/p3/library/
FamilyMedicalLeave/THEFMLAWhatWhoHow.pdf. Accessed January 5, 2007.
\3\ National Partnership for Women and Families. All statistics
were compiled from the U.S. Department of Labor report, Balancing the
Needs of Families and Employers: Family and Medical Leave Surveys 2000
Update. http://www.nationalpartnership.org/portals/p3/library/
FamilyMedicalLeave/THEFMLAWhatWhoHow.pdf. Accessed January 5, 2007.
\4\ U.S. Department of Labor, Bureau of Labor Statistics. The 2000
THE FMLA Survey Report. Table A2-6.12 and A2-619. http://www.dol.gov/
esa/whd/theFMLA/theFMLA/APPX-A-2-TABLES.htm Accessed January 12, 2007.
\5\ U.S. Department of Labor, Bureau of Labor Statistics. The 2000
THE FMLA Survey Report. Table A1-2.17. http://www.dol.gov/esa/whd/
theFMLA/theFMLA/APPX-A-1-TABLES.htm Accessed January 12, 2007.
\6\ 29 U.S.C. Sec. Sec. 2611(11), 2612(a)(1)(C), (D).
\7\ 29 C.F.R. Sec. 825.114.
\8\ Regulatory Preamble, 60 Fed. Reg. at 2195 (emphasis added).
______
[Additional submissions of Mr. Wilson follow:]
[Statement of the National Business Group on Health
follows:]
Prepared Statement of the National Business Group on Health
The National Business Group on Health (The Business Group) commends
the Congress and the U.S. Department of Labor (DoL) for their efforts
to improve an important law that has helped millions of workers and
their families in times of serious medical illness and the birth or
adoption of a child. The updated rules, recently proposed by the DoL,
will make needed corrections and clarifications to help ensure that the
benefits of the 15 year old law remain secure. The Business Group,
representing over 300 large employers that provide health care coverage
to more than 55 million U.S. workers, retirees and their families, is
the nation's only non-profit organization devoted exclusively to
finding innovative and forward-thinking solutions to large employers'
most important health care and related benefits issues. Business Group
members are primarily Fortune 500 and large public sector employers,
with 63 members in the Fortune 100.
The Business Group appreciates the opportunity to submit this
statement for the record. Today's hearing addresses necessary updates
to the current law to assure appropriate use of the Family and Medical
Leave Act (FMLA) in order to protect leave for those who need it, to
improve productivity and employee morale, and to minimize the
administrative burden that invites litigation and threatens the
integrity of this important law.
Employers recognize the importance of family leave and these new
rules will help to make clear what employees need to do to take FMLA
leave for their own serious illnesses. The updated rules will also make
it easier for human resources professionals and employers to administer
FMLA for serious medical illnesses.
As stated recently by Helen Darling, President of the Business
Group, ``Employers consistently rank FMLA at the top of the list when
asked what the most difficult federal regulation to administer is.
While the family leave part of the law works well, unclear and
sometimes conflicting regulations and court decisions pertaining to
employees' medical leave continue to increase the administrative costs
for employers and causes workplace disruption for employees.''
The Business Group's members generally offer generous benefit and
leave programs. Employees often have multiple options for leave--paid
and unpaid. In many cases, employees may use accrued paid leave and
FMLA simultaneously. The Business Group does not support mandated paid
FMLA leave. The Business Group does support appropriate use of FMLA.
However, many employers are experiencing dramatic increases in
employees' requests for FMLA leave, often for brief time periods and
non-serious medical conditions, and experience substantial burdens
administering FMLA.
Clarifications Needed
While a number of items are addressed in DoL's proposed
regulations, the following clarifications and technical corrections to
FMLA are needed to help assure appropriate use of FMLA and to minimize
the administrative burden and adverse productivity impacts of many of
the current FMLA regulations:
Clarifying the qualifying conditions for FMLA eligibility
pertaining to employees' requests for leave due to their own health
condition by adding an inability to work test to qualify for FMLA;
Clarifying the definition of qualifying conditions and
exclusions eligible for FMLA by specifying additional conditions that
would generally qualify and conditions that would not generally qualify
for FMLA;
As a fallback to the two clarifications above, requiring
mandatory inclusion of the diagnosis code or codes on the medical
certification provided by the employee and attending physician to the
employer;
Establishing a minimum leave time in larger time
increments;
Permitting employers to require employees who request
unscheduled intermittent leave to choose between extending FMLA leave
or a leave of absence if the employer cannot reasonably accommodate the
request;
Permitting employers to contact providers to confirm
information provided by employees;
Maintaining the employer option of permitting employees to
use accrued paid leave and FMLA simultaneously; and
Permitting employers to exclude employees taking FMLA
qualifying absences from employee bonus and recognition programs for
attendance.
Employers Are Experiencing a Dramatic Increase in Requests for FMLA
Leave, Often for Short Periods or Minor Conditions. Some Examples are
Listed Below:
Some employers report that up to 25% of their employees
take FMLA leave each year.
One employer states that FMLA leave is often used for
headaches, sinusitis, colds, flu, tooth extractions and other minor
illnesses for which recovery is brief.
Another employer cites cases in which employees whose
vacation requests for specific time periods have been turned down
subsequently file for FMLA leave for stress because their vacation
requests were denied.
In other cases, FMLA leave is requested in the absence of
any medical condition, serious or minor. For example, an employee
requests FMLA leave because their acupuncturist wants to observe their
response to treatment for a long period of time.
The Administrative Requirements for FMLA Are Burdensome
One employee requests a ten minute FMLA leave every week
to attend to a contact lens problem. The employer generates a
significant amount of paperwork to comply with this request. A minimum
leave period would alleviate this burden.
Although employers may request a second medical opinion
prior to granting FMLA leave, it is often scheduled too late by the
individual to be of any use. Amending the FMLA to permit employers to
contact providers, as proposed by DoL, to confirm the presence of a
serious condition for which recovery is not expected to be brief would
enable employers to confirm information.
Coordination with disability leave is complicated because
guidelines for implementing FMLA leave are not as strict as those for
disability leave. For example, while some conditions may qualify for
FMLA, they do not qualify for disability leave. Clarifying the
definition of qualifying serious medical conditions would facilitate
coordination with disability leave.
Comments to the Department of Labor Provide Specific Examples of FMLA
Abuse
Because employees can essentially establish their own
schedules under FMLA regulations, there is evidence of employees who
take their FMLA leave during regular working hours and then work the
overtime shifts (evenings, weekends, and holidays) to work their
required number of hours to maintain employment and at the same time
collect higher wages. An airline reports that employees use FMLA to
work shifts paying overtime but are often no shows for regular shifts.
FMLA usage plummets on December 25 (Christmas Day) each year when
triple overtime is paid. FMLA usage is near its peak the day before
Christmas and jumps the day after, but nearly all those employees who
have been out on FMLA are able to come to work on Christmas day.
A state agency reports that FMLA misuse affects morale
negatively. Some employees have ``bragged to others how easy it is to
get the extra time off and how they use this time for vacation.''
Multiple industries have mandated staffing ratios.
Hospitals are required to staff a certain number of nurses per patient,
schools are mandated to have a certain number of teachers per student,
and planes cannot fly without the appropriate number of flight crew.
When FMLA leave is taken intermittently and without prior notice, the
ability to conduct ``business as usual'' can be threatened. Employers
incur higher costs when they have to bring on an unscheduled worker and
pay that person a higher wage to cover the absent employee. For
example:
A 911 call center reports ``an enormous amount of short
notice overtime is required to handle unscheduled absences. This leads
to overtired people making critical life and death decisions during
emergencies.''
A school district notes that that bus drivers claiming
FMLA leave with no notice ``mean[s] children are often left waiting on
street corners in all weather'' while the County tries to find
replacement drivers.
The way that FMLA is structured-up to 60 days off each
year-could potentially allow an employee to have four-day work weeks
for an entire year. This means that employees who are classified as
full-time workers, but only work part-time, receive full-time benefits
while employees who are truly part-time workers only receive part-time
benefits (if any). One state reports that some intermittent FMLA leaves
almost default into light duty assignments because supervisors must
reassign work that the frequently-absent employee is responsible for to
ensure that deadlines are met and services are provided to customers.
DoL's Proposed Updates to the FMLA
The new rules should make clearer both employees' obligations to
notify employers when taking FMLA leave and employers' obligations to
employees regarding FMLA notice requirements, reducing future lawsuits
over different interpretations of the rules. The vagueness of the old
rules, some of which were nullified by the Supreme Court in Ragsdale v.
Wolverine Worldwide Inc. and other court rulings had provoked numerous
lawsuits against employers. The new rules strengthen requirements to
document serious illnesses and improve the ability to verify the
presence of serious illnesses for FMLA leave.
Definition of ``Serious Health Condition''
The Business Group supports a clarification of ``serious health
condition'' by listing examples of conditions that would generally
qualify and conditions that would generally be excluded, to reduce the
use of FMLA leave for minor conditions in which treatment and recovery
are brief. This would reduce this burden on employers by excluding from
the list of conditions minor conditions such as colds, minor headaches,
and the flu.
Reduced /Unscheduled Intermittent Leave
The Business Group supports a clarification that employers may
track unscheduled intermittent leave in larger time increments. This
clarification would ease the cost and paperwork burden, while ensuring
that those employees who need intermittent leave are granted such
leave. Employers should also be able to require employees who request
unscheduled intermittent leave to choose between extended FMLA leave or
a leave of absence.
Relationship to Paid Leave
The Business Group supports the current policy regarding concurrent
leave, which gives employers the option of permitting employees to use
accrued paid leave and FMLA simultaneously. This policy protects
employees' incomes during periods of serious illness and maximizes the
flexibility in the design of employer leave policies.
Perfect Attendance Awards
The Business Group supports the proposed changes to perfect
attendance awards. The unintended consequence of current law is that
many employers have dropped these programs due to the negative impact
on employees who have not missed any work being recognized alongside
employees who may have taken up to 12 weeks of FMLA leave. This change
would allow employers to use attendance, bonus and recognition programs
once again as a means of rewarding employee attendance and improving
employee morale.
Waiver of Rights
The Business Group supports the ability to voluntarily waive rights
and allow employees to settle FMLA claims out of court.
Employer Notice Requirements
While 15-business days is justified for notification, as it is
equal to the amount of time employees are allowed to return their FMLA
paperwork, a 10-day time frame is more reasonable than the increase to
5-business days contained in the proposed rule to allow employers more
time to make a well-informed decision as to whether FMLA leave is
warranted.
Employees' Notice Obligations
The Business Group supports advance notification of employees
taking FMLA leave. Lack of advance notice (e.g., before employees'
shifts start) for unscheduled absences is one of the biggest
disruptions employers point to as an unintended consequence of the
current regulations.
Medical Certification Process
The Business Group recommends requiring physicians to include
diagnosis codes on the certification form. By requiring physicians to
include the diagnosis code or codes on the medical certification form,
the DoL could dramatically improve the proper use of FMLA. In addition,
the DoL should make the form more concise by adding the non-serious
health condition list to the form.
Recertifications
Many employers find that doctors recertify using the same
information from the initial certification and simply change the date.
The Business Group recommends the DoL create a sample form for
recertification (in addition to the revised WH-380 or create a new
section for recertification) that provides a standard set of questions
for health care providers. The form could include language to deter
health care providers from ``rubber stamping'' the initial
certification.
Our understanding of the current regulation is that employers must
not only delay the request for 30 days but also then wait an additional
period until the employee's next absence. This could be any number of
days after the 30-day period ends. We have seen that many employers
simply send out the recertification request every 30 days without
waiting until the next absence. The Business Group believes employers
need clearer direction to administer these recertifications. In
addition, the former interpretation (waiting until the next absence
after the 30-day period) is extremely challenging to administer.
Fitness for Duty (FFD)
The Business Group is pleased the proposed rule will enable
employers to require ``fitness-for-duty'' certifications to assess
employees' abilities to perform the essential functions of their jobs
before they return to work following regular or intermittent FMLA
leave.
The Business Group also supports the proposed language that will
enable employers to provide physicians with a list of essential job
functions and require employees' health care providers to certify
whether employees can perform the work. This is a vast improvement to
the current practice where physicians submit only statements to
employers that employees can return to work, but may not know their job
functions and duties, which creates unnecessary risks (for both
employers and employees), and jeopardizes workplace and public safety,
if individuals returning to work can not perform their jobs.
Military-Related FMLA Leave
Employers recognize the importance of added flexibility and the
need to support military families. The Business Group also believes
that the new military-related FMLA leave provisions are best
administered and understood by both employees and employers if they are
administered in a way consistent with other FMLA leave where possible.
The Business Group believes military-related FMLA leave should be
limited to the ``exigencies,'' listed in the proposed regulation,
including: making arrangements for child care, financial and legal
arrangements to address service members' absences; attending counseling
related to the active duty of the service member; attending official
ceremonies or programs where the participation of the family member is
requested by the military; attending to farewell or arrival
arrangements for a service member; and attending to affairs caused by
the missing status or death of a service member.
The Business Group believes the DoL should also follow the existing
precedent under all other FMLA leave and clarify the fact that requests
for more than one FMLA absence in a year is based on a maximum total of
FMLA leave per employee. The Business Group believes that employees
with multiple leave requests should also follow the proposed regulation
to require employees requesting FMLA leave to follow their employers
usual and customary call-in procedures for reporting an absence.
Again, the Business Group appreciates the opportunity to submit
this statement for the record. We look forward to working with the
Congress and the members of this Committee to ensure that both
employers and employees continue to benefit from an updated FMLA policy
for the 21st Century.
______
[Statement of the National Coalition to Protect Family
Leave follows:]
Prepared Statement of the National Coalition to Protect Family Leave
The National Coalition to Protect Family Leave (``Coalition'' or
``NCPFL'') is a broad-based, non-partisan group of organizations,
companies and associations dedicated to protecting the integrity of the
Family and Medical Leave Act (``FMLA'' or ``the Act''). The Coalition
supports both the spirit and intent of the FMLA and commends the
Subcommittee for holding this hearing commemorating the 15th
anniversary of this important statute. The Coalition appreciates the
opportunity to submit this statement for the record.
Since its enactment in 1993, the FMLA has guaranteed invaluable
work and family flexibility for millions of Americans. Members of the
Coalition recognize the challenges employees face in balancing work and
family demands and their desire to feel secure in their jobs,
particularly in the event they need to be absent for family or medical
issues. We also understand the concerns of employers when administering
certain portions of the FMLA on a daily basis. The Coalition believes
that Congress intended the Act to strike a balance between the needs of
employees for leave for family and serious medical reasons, and the
interests of employers to know when employees will be at their job.
This hearing provides an ideal opportunity to examine the FMLA 15 years
later to determine whether the law continues to meet the needs of both
employees and employers.
I. FMLA Challenges
The Coalition recognizes the significant contributions the FMLA has
made to the American workplace and the millions of Americans who have
benefited from this historic piece of legislation. The family leave
provisions of the FMLA have been particularly successful, and employers
have encountered very few challenges implementing the leave provisions
as they apply to the birth or adoption of a child or the extended care
of a sick parent or child. Further, the medical provisions of the FMLA
generally work well in cases of planned surgery and long-term scheduled
medical events as well as scheduled intermittent leave for recurring
conditions. The common factor in each of the above mentioned examples
is that in each instance, the need for leave was either foreseeable or
scheduled in advance. While the Coalition realizes that not every need
for leave is foreseeable or predictable, the ability of an employer to
know ahead of time that an employee will be absent from work and to be
able to plan for the employee's absence is crucial to the successful
administration of the FMLA.
Notwithstanding the FMLA's successes, employers have experienced
challenges with the Act, in particular, the use of intermittent leave
for chronic conditions. While Congress wisely foresaw the need for
intermittent leave by employees to receive physical therapy, dialysis,
or chemotherapy treatments when it passed the FMLA, the workplace
impact of unscheduled, sporadic leave in small increments of time was
not fully appreciated. As a result, the day-to-day administration of
the Act has confused both employers and employees alike resulting in
employers not being sure what leave they should grant, employees taking
leave that is not consistent with the intent of Congress, and
ultimately extensive litigation to resolve these disagreements.
Employers have also struggled with the definition of what
constitutes a serious health condition as well as with the implications
of unscheduled intermittent leave. The intermittent leave regulations,
coupled with the vague, and seemingly open-ended, serious health
conditions regulations, allow employees to characterize chronic, non-
serious health conditions as FMLA leave.
In 2007, the Coalition released a survey conducted by the Society
for Human Resource Management (SHRM) that found more than half (51%) of
human resource (HR) professionals have faced ``significant challenges''
in implementing the medical leave provisions of the FMLA. In addition,
nearly two-thirds of HR professionals have experienced problems in
determining when to grant ``chronic leave'' under the Act, leading to
employee morale issues for those employees who have to cover for an
employee on leave.\1\ The challenges of chronic leave threaten the
integrity of this important law for those employees who truly have
serious health conditions. For these reasons, the Coalition has
actively supported public policies and regulatory changes that will
strengthen the FMLA to ensure its availability to those employees
Congress intended to cover.
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\1\ Society for Human Resource Management, SHRM Survey Brief: FMLA
(2007)
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Much of the confusion surrounding the medical portion of the FMLA
has been the inconsistent U.S. Department of Labor (``DOL'' or ``the
Department'') opinion letters and Federal court decisions that have
undermined the original intent of the Act. Consequently, the Coalition
has repeatedly urged DOL and Congress to strengthen the FMLA
regulations by clarifying the medical leave interpretations and other
FMLA administrative complexities which are causing problems in the
workplace.
II. DOL's Proposed FMLA Regulation
On February 11, 2008, the DOL published its long-awaited proposed
rules to address many of the sections of the FMLA that are confusing
for both employees and employers. The Coalition appreciates a number of
the proposed changes put forth by the Department. It is clear that the
DOL's suggested modifications are modest in scope, well supported by an
extensive record, and will protect the benefits afforded to employees
under the Act while improving FMLA administration in the workplace. In
no way will the proposed changes jeopardize, or undermine the ability
of an employee to take the leave intended by Congress when it passed
the FMLA in 1993.
The Department's proposal is the result of a lengthy and
comprehensive review of the FMLA regulations that included numerous
stakeholder meetings, more than 15,000 public comments from employers,
employees, and health care providers, numerous congressional hearings,
and much litigation. Unfortunately, the proposed rule does not appear
to adequately address the challenges employers have experienced in
determining the definition of a serious health condition under the
current regulations--which will mean that this issue will require
attention at a future date. Despite this omission, the Coalition
believes the DOL's proposal represents a good first step--and we
support this reasonable approach for the following reasons:
First, the Coalition supports the DOL's proposed changes to the
medical certification process so that ``vague, ambiguous and non-
responsive'' answers may be clarified. As this process is the
foundation of the medical leave determination, it is imperative that as
much information as possible, consistent with requirements for
maintaining privacy, be collected. The more an employer understands
about an employee's condition, the better they can accommodate that
employee's needs. Providing a medical provider with a list of necessary
job functions and asking him or her to certify the employee is fit for
duty will ensure the health and safety of the employee as well as his
or her colleagues. In addition, granting an employer the ability to ask
clarifying questions of the health care provider consistent with the
Health Insurance Portability and Accountability Act, the Americans with
Disabilities Act and other Federal statues, will ensure prompter FMLA
leave request reviews and decrease costs for both employers and
employees. We also join with many health care providers and
associations of health care providers who have expressed concerns about
the current WH-380 medical certification form and commend the
Department for proposing a new form that will be easier for health care
providers to use and will likewise assist employers in making proper
determinations about the granting of FMLA leave.
Second, the proposed rule provides a practical approach to
requirements for the employee to provide notice of when they will be
using FMLA leave and ends the ability of an employee to report his or
her failure to show up for work for up to two days with no notice as
FMLA leave (absent a severe emergency situation). By requiring a
qualified employee to make a ``reasonable effort'' to contact his or
her employer before an assigned shift, employers can more adequately
staff and operate their businesses. Additionally, the Coalition
believes that this proposed change will alleviate much of the workplace
friction by providing employees and employers alike with clearer
guidance as to how and when unscheduled intermittent leave may be
requested. This provision will also benefit those employees who are at
the job and would otherwise have had to cover for an employee who was
taking leave that would not have been scheduled, or may not be
appropriate.
The Coalition also supports the DOL's proposal regarding
substitution of paid leave. The Coalition believes that DOL's proposal
to allow employers to enforce the terms and conditions for when
substitution of paid leave occurs when an employee uses FMLA leave is
consistent with the main statutory goal of the FMLA, namely that
nothing in the FMLA be construed so that it would discourage employers
from adopting or retaining more generous leave policies. The Coalition
believes that inherent in the provision of paid leave voluntarily
provided by employers are the terms and conditions associated with
utilizing such paid leave. Thus, leave is not available for employee
use unless the terms and conditions for its use are satisfied. Such an
interpretation is consistent with DOL's opinion letters on this topic,
as well as the statute, which specifically provides for an unpaid leave
entitlement unless accrued leave is available to substitute.
Finally, the NCPFL believes the proposed rule could have done more
to address the issue of defining serious health conditions by
clarifying the ``objective test'' of more than three days incapacity
plus treatment and by increasing the minimum increment of intermittent
leave allowed to half or full days. Either or both of these changes
would likely have reduced the use of medical leave that is inconsistent
with the act, and would have helped employers determine whether an FMLA
leave request is legitimate. Increasing the increments of intermittent
leave would have reduced the time spent calculating FMLA time used and
accrued, and also served as a disincentive to employees using
intermittent leave to cover for tardiness.
These concerns do not override our strong support for these
proposed changes. The NCPFL hopes that Congress will allow DOL to
proceed with the regulatory changes to the FMLA which will restore the
balance Congress intended between employers' needs for a productive
workforce and workers' needs for time to attend to important family and
medical issues.
III. Support for FMLA Regulatory Changes
A recent poll conducted on behalf of the Coalition indicated that
American voters strongly support efforts to modify the FMLA. The
national survey was conducted by the polling company(tm), inc. and
represents the results of a nationwide telephone survey of 1,000
registered voters from February 7-12, 2008. The survey has a margin of
error (plus/minus) 3.1%.
Among the survey's key findings:
Many Americans Recognize Potential for FMLA Misuse * * * A majority
(59%) of voters said there was a ``serious'' potential for FMLA misuse.
And nearly half (46%) of those surveyed could cite at least one
occasion where they suspected ``a fellow employee who claimed to be
taking time off for family or medical reasons was really using it for
something else.''
One in Three Workers Say Unscheduled Leave Makes Their Jobs Harder
* * * Just over one-third (34%) of survey respondents said sporadic,
unannounced leave by co-workers--a major issue under current FMLA
rules--makes them less productive on the job.
The survey results also indicated strong levels of support for many
of the concepts embodied in the proposed rule changes, including:
88% of Americans support ``requiring employees who wish to take
FMLA leave to get their `serious medical conditions' recertified by a
health care provider once a year or every six months. Currently
employees never have to return to their doctors for check-ups or to get
recertified.
73% of voters approved of ``allowing employers to speak directly to
a worker's health care provider when he or she is ready to return to
work after taking FMLA leave to ensure that the worker is able to
resume working and will not pose a danger either to himself or herself
or to other employees.''
69% of voters approved of ``strengthening the notification
requirements so that employees are required to give reasonable notice
before taking unscheduled leave under the FMLA.''
IV. FMLA Expansion
As mentioned earlier, the NCPFL supports both the spirit and intent
of the Family and Medical Leave Act and recognizes the many Americans
who have benefited from this important law. In order to preserve the
integrity of the law's leave protections for family and medical
reasons, the medical leave provisions of the Act and the corresponding
regulations must be clarified to ensure that the Act benefits those
employees who need it most. While we understand that some members of
Congress are interested in providing additional work flexibility to
employees and their families, or providing these benefits to more
employees and their families, the Coalition believes that the FMLA
regulations need to be improved before expansion of the Act or other
leave mandates are considered. Expanding a law that is not working
properly will only exacerbate the problems currently experienced by
both employers and employees. Similarly, we are opposed to amending the
FMLA to make leave paid. We believe this will create a strong incentive
for employees to look for opportunities to take leave that is not
consistent with the balance of interests established in the Act.
V. Conclusion
Regulatory changes to the Family and Medical Leave Act proposed by
the Department of Labor will strengthen a law that is critically
important to employees and their families. At the same time, more work
needs to be done to clarify other areas of the FMLA's implementing
regulations. The Coalition appreciates the spotlight Congress has
placed on this important policy that has benefitted so many. We look
forward to working with you, and members of this Committee, to ensure
the needs of our ever-changing workforce and their employers are met by
the FMLA.
______
[Statement of the Retail Industry Leaders Association
follows:]
Prepared Statement of the Retail Industry Leaders Association
RILA supports the spirit and intent of the Family and Medical Leave
Act (FMLA) and recognizes the challenges employees face in balancing
their work and families with their desire to feel secure in their jobs
should they need to be absent for family or medical issues. We also
understand employer concerns with administering the FMLA on a daily
basis. RILA believes the Act's current administrative complexity should
be addressed and opposes efforts to expand its scope to include
additional employer mandates beyond the Act's original intent.
The Retail Industry Leaders Association promotes consumer choice
and economic freedom through public policy and industry operational
excellence. Our members include the largest and fastest growing
companies in the retail industry--retailers, product manufacturers and
service suppliers--which together account for more than $1.5 trillion
in annual sales. RILA members provide millions of jobs and operate more
than 100,000 stores, manufacturing facilities and distribution centers
domestically and abroad.
As Congress examines this important issue, employees who need it
must continue to be able to enjoy the intended benefits of the FMLA.
Workers must be able to take time off for the birth or adoption of a
child, to take care of a family member with a serious illness or seek
treatment themselves when seriously ill. The FMLA was never intended to
turn full-time jobs into part-time jobs. It was never intended to allow
employees to take sporadic leave without any notification. It was never
intended to unfairly burden colleagues forced to cover the
unpredictable absences of their co-workers.
The proposed changes to the FMLA regulations will improve a law
that has helped millions of American workers and their families.
Despite an ever-changing workforce, the DOL has not updated the FMLA
since the implementing rules went into effect 15 years ago. While the
family leave sections of the law are generally working well, some of
the medical leave sections are causing confusion in the workplace. The
most difficult parts of the law for retail managers to work with are 1)
the definition of a serious health condition, and 2) unscheduled,
intermittent leave. Clear guidance on both of these issues would
greatly enhance employer-employee relations and it is important for
RILA that benefits afforded employees under the FMLA remain secure.
______
[Letter, dated April 11, 2008, from the Society for Human
Resource Management to the Department of Labor, may be obtained
from the following Internet address:]
http://www.shrm.org/
______
[Whereupon, at 12:41 p.m., the subcommittee was adjourned.]