Pondering changes to family leave

Workers protest move to rewrite labor law

Chante Lasco, of Easton, Md., whose employer would not pay for her maternity leave, favors efforts by Democrats to provide paid leave. Proposed changes to the Family and Medical Leave Act have caused a debate between the Bush administration and workers' rights advocates as to how to serve both businesses and employees during a struggling economy.

Proposed revisions

Employer Notification: Rather than allowing employees to provide notice to an employer of the need for unscheduled FMLA absence up to two full business days after an absence, the law would require the employee to follow the employer’s customary call-in procedure, which usually involves notifying the employer before the employee’s shift starts.

Medical Certification: This would allow direct contact between the employer and the health-care provider for purposes of clarification of a medical certification form as long as the requirements of the HIPAA medical privacy regulations are met.

Fitness for Duty: The current FMLA regulations allow employers to ask employees who take leave to provide a certification that they are able to resume work. The proposal makes two changes to this fitness-for-duty certification process.

First, an employer may specifically require that the certification address the employee’s ability to perform the essential functions of the employee’s job.

Second, where reasonable job safety concerns exist, an employer may require a fitness-for-duty certification before an employee may return to work when the employee takes intermittent leave.

This year marks the 15th anniversary of the landmark Family and Medical Leave Act, which made it possible for many workers to take unpaid job-protected time off to care for their newborn children or sick relatives.

But instead of celebrating, workers’ rights advocates and the Bush administration are battling over what would be the most sweeping revisions ever to the law.

Under proposals being considered by the Labor Department, workers would have to:

¢ Tell bosses in advance when they take nonemergency leave, instead of being able to wait until two days after they left.

¢ Undergo “fitness-for-duty” evaluations if they took intermittent leave for medical reasons and wanted to return to physically demanding jobs.

¢ Visit a health care provider at least twice within a month of falling ill, to prove a “serious health condition.” Employers would have the right to contact health care providers who authorized leave.

These and other proposed changes have set off a fierce debate. More than 4,000 comments were submitted to the Labor Department this month, the deadline for the public to weigh in.

They came from labor unions, religious organizations, women’s rights groups and businesses across the country.

There were queries such as these, from Rita Palmer at the Planet Hollywood Resort and Casino in Las Vegas: “What alternative does an employer have when an employee must leave the country for an ill parent? What if abuse is suspected? We had an employee leave for Italy every summer and submitted a WH-380 from the mother’s attending physician.”

And pleas, such as these, from Richard Kirk, chief steward of the Sacramento Area Local American Postal Workers Union: “Given the outsourcing and the loss of jobs overseas, Americans must hold on to what we have today, for fear of losing it tomorrow.”

Economic situation

At the crux of it, said advocates of the FMLA and of its revisions, is the uncertainty fostered by the wobbly economy. Workers want assurances that their jobs will be safe even when they have family or medical emergencies. Businesses want to make sure they are getting the most for their money.

Any changes would have widespread impact. In 2005, the last year for which the Labor Department has data, nearly 7 million people used the FMLA, which allows for as much as 12 weeks of unpaid leave. Workers rely on the FMLA because many companies do not offer paid sick leave or disability coverage. No federal law requires paid sick leave.

Some changes have been made. In January, Congress passed and President Bush signed an act that allowed military families to take extended leave to care for an injured service member.

That has buoyed other efforts. Democrats in Congress have introduced a number of bills that would guarantee more time off when family needs arise. The Healthy Families Act, for one, would give workers seven days of paid sick leave to care for their own medical needs as well as those of a family member. The Balancing Act would provide paid family medical leave, benefits for part-time workers and time off for activities that require parental involvement, such as medical appointments.

Uncertain future

Although Democrats control Congress, it is unclear how far such bills would go. Even if they made it through the House and Senate this session, getting past a Republican in the White House could prove difficult, according to a Democratic staff member in the House and some FMLA advocates.

The White House, meanwhile, is intent on putting its stamp on the FMLA. Assistant Labor Secretary Victoria Lipnic said her goal is to finalize the new rules during this administration, but she said it would take a long time to go through all the comments. She also acknowledged that although the Labor Department has the authority to rewrite regulations, Congress could stall or halt any changes by refusing to provide money for them.

To Lipnic, the proposals are a way to “clean up” the regulations. They are also, she said, an attempt to end some abuses.

“Unfortunately, the current regulations went so far as to say that employees don’t have to notify employers until two days after they are absent,” she said. “Honestly, I don’t think that was the congressional intent.”