HR Pulse - Winter 2007 - (Page 24) FMLA’s Intermittent Leave Acknowledges Friction Provision DOL Report By Jeff Payne Debatable Value The DOL received more than 15,000 responses, both in support of reform and of keeping the law intact as written and interpreted. The comments were collected, analyzed and published in the DOL’s 162-page document titled “Family and Medical Leave Act Regulations: A Report on the Department of Labor’s Request for Information,” published in June. (To download the complete report, visit www.dol.gov/esa/whd/fmla/.) This article captures some of the public feedback and DOL commentary as it relates to intermittent leave. In the report’s foreword, the DOL states: “There are no proposals for regulatory changes being put forward by the Department with this report. Rather, what we hope this report does is provide information for a fuller discussion among all interested parties…” Reading that, some have dismissed the report as having little practical value because it simply restates facts that are already well-known and felt by many. It does a good job, however, of documenting and articulating the primary objections to FMLA and laying out many suggested improvements. In general, this report provides highly useful points to consider and leverage as ASHHRA and others continue to advocate for meaningful reform of the current regulations. The report organizes comments into three primary categories: • Gratitude from employees for the law • A desire for expanded benefits • Frustration by employers about difficulties in maintaining necessary staffing levels and controlling attendance problems.i The report states, “The Department is pleased to observe that in the vast majority of cases, the FMLA is working as intended.” But it adds: “At the same time, a central defining theme in the comments involves an area that may not have been fully anticipated: the prevalence with which unscheduled intermittent FMLA leave would be taken in certain workplaces or work settings by individuals who have chronic health conditions. This is the single most serious area of friction between employers and employees seeking to use FMLA leave. The Department is cognizant that certain of its regulatory decisions and interpretations may have contributed to this situation. 24 HR Pulse Winter 2007 o say that the Family and Medical Leave Act (FMLA) has had a profound impact on the practice of HR management is an understatement. Nearly everyone agrees that the basic premise of the law—to provide employees with a period of leave and hold their jobs secure while they deal with their own serious health condition or that of a child or parent—is good and sound. But things became enormously complicated when the Department of Labor (DOL) gave subsequent interpretations to the act’s various standards, especially regarding intermittent absences. As healthcare HR professionals, we see and hear the enormous frustration of clinical managers as they try to balance workforce shortages and productivity challenges, all the while having to accommodate a chronically absent employee. ASHHRA, the Society for Human Resources Management and hundreds of other organizations have consistently called for reforming FMLA to correct what we feel are significant and unintended negative effects of the law. In response to the hue and cry, the DOL put out a request for comments on the law. T http://www.dol.gov/esa/whd/fmla/
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