November 24, 2007 in Business

Family leave friction growing

Kris Maher Wall Street Journal
 

There’s a domestic squabble brewing over the Family and Medical Leave Act.

Considered by its advocates to be an important protection for those trying to balance family and work, the act allows workers to take as many as 12 weeks of unpaid leave to care for a newborn or a sick child, spouse or parent, or to recuperate from their own serious medical condition — without fear of losing their jobs. As many as 13 million workers took FMLA leave in 2005, according to the Department of Labor, the latest data available.

Yet employers and workers are increasingly accusing each other of abusing the law, which dates from 1993. Companies say more workers are using it to take time off for vague and chronic maladies and doing so intermittently, rather than in blocks of time, which makes scheduling and staffing difficult.

Workers, for their part, say companies are making it more difficult to qualify for leave and requiring second or third opinions from health care providers. Some are fired or punished with worse assignments when they return to their jobs, they charge.

The Labor Department, which oversees the program, acknowledges the growing friction, but won’t say if it is planning to issue proposed rule changes anytime soon. The tensions became visible when the department issued a request late last year for comments on the law and received more than 15,000 responses from workers, companies, law firms and unions — far more than expected. The department issued a report based on the survey in June.

“We haven’t made any final decisions” about revising the act, said Victoria A. Lipnic, the department’s assistant secretary of labor for employment standards. “There are certainly parts of the regulations that from a good-government standpoint need to be cleaned up.”

Many workers aren’t eligible for FMLA benefits because they work for small companies or on a part-time basis. (The law applies only to companies with 50 or more employees.) Many flight attendants and pilots, who tend to have irregular work schedules, may not meet a minimum requirement for hours worked. In its report, the Labor Department acknowledged the growing importance of the law for baby boomers who increasingly need to take off from work to care for an elderly parent. The agency cited this as an example of the law’s effectiveness. But in many cases, these workers are using intermittent leave to chauffeur a parent to a doctor’s visit or to care for a parent after a surgery, which could contribute to tensions over workers requesting leave on a less-predictable basis.

Most workers who take time off under FMLA, though, use it to tend to their own health issues — and that’s where most of the complaints originate.

Christian Kappelmann, a commercial insurance agent for Brown & Brown Inc., which is based in Daytona Beach, Fla., requested FMLA leave to have surgery to repair a herniated disc and a fractured vertebra following a car accident in 2004.

Kappelmann, 46 years old, of Coral Springs, Fla., said he was required to get several forms signed by doctors and to Brown & Brown by a certain date, which he contends he did. But the company, he said, soon fired him and stated in a letter that he wasn’t medically able to perform his job. Kappelmann, who still hasn’t had surgery, recently filed a lawsuit for back pay and benefits, which is pending in federal court in the Southern District of Florida.

Mark Hanley, a lawyer for Brown & Brown, declined to comment on any specifics of the case. “It is my belief that the company did not violate any provisions of the FMLA,” he said. The most common complaint among workers seeking legal help is that they were fired or demoted for taking leave, said Loring Spolter, an employment lawyer in Fort Lauderdale, Fla., who is representing Kappelmann.

From an employer’s perspective, a bigger problem involves intermittent leave, often taken by people who have chronic conditions such as asthma, diabetes, back pain and severe migraines. Of the estimated 6.1 million to 13 million workers who took FMLA leave in 2005, the Labor Department estimates that one-fourth did so intermittently.

“This explosion in the use of unscheduled leave is really what employers complain about,” said Labor’s Lipnic.

Such unscheduled leaves are especially problematic in companies with time-sensitive operations, such as delivery, transportation, health care, manufacturing and public safety. When workers don’t show up to man counters or drive buses, often their employers have to pay someone overtime.

“The intermittent leave is the worst,” says Marilyn Zeiner, vice president of human resources at CompIQ Corp., an Irvine, Calif., company that reviews medical bills for insurers. If someone has asthma, they might be fine in the morning, but need to take two hours off in the afternoon. Accounting for that is a paperwork and scheduling “nightmare.”

Many companies and business groups want new provisions to limit intermittent leave, including advance notification.

But workers say the allowance for intermittent leave is critical. “As a two-time survivor of breast cancer, I have taken FMLA leave both on a continuous and an intermittent basis — continuous leave to recover from my surgeries (therapeutic and reconstructive) and intermittent for doctors appointments, radiation therapy, and chemotherapy treatments,” one woman wrote to the Labor Department.

One railroad employee wrote that he uses intermittent leave to care for his wife, who suffers from multiple sclerosis, which can flare up unexpectedly, leaving her unable to care for herself. One woman said her daughter has had a major asthma attack causing bronchial infection, swelling and bacteria in her throat.

“No one is capable of predicting an asthma attack or the severity of the attack; I just would like the assurance of knowing that if or when the situation should arise, I have the time off required to handle her needs without the threat of being … terminated,” she wrote.


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