HR Pulse - Winter 2007 - (Page 25) “Certain types of industries and worksites and their workers appear to be more impacted by unscheduled intermittent FMLA leave-taking than others and there is considerable tension between employers and employees over the use of this leave…in particular… [those] business operations [who] have a highly timesensitive component, e.g., delivery, transportation, transit, telecommunications, health care, assemblyline manufacturing, and public safety sectors.”ii While many probably would say the DOL understates the problem, most would agree it is important and gratifying that the troubles created by the intermittent leave provisions have at least been formally acknowledged. Employers’ View of Intermittent Leave What, then, does the report conclude are the problems with intermittent leave? The DOL cites employers who reported “unscheduled intermittent leave…results in decreased productivity, is difficult to manage, and is ripe for ‘misuse.’”iii The National Association of Manufacturers summed up the concerns of many employers in its strongly worded comment: “…intermittent leave is the point in the FMLA where all unintended harmful consequences of the law come together to cause an economic nightmare for manufacturers: unchallengeable ailments, unassailable and unannounced absences, and unending burdens with no prospect of a remedy.” The DOL summarizes employer concerns with intermittent leave as involving three main issues: • Schedule problems caused by employee absences with little or no notice • Loss of management control • Impact on employee morale and productivity. With scheduling, the problem lies primarily with the ‘”two-day rule”’ in which the DOL interpreted the act’s original verbiage “as much notice as practical” to mean “as long as the employee provides the employer with ‘notice’ within two days of the absence.” One employer captured the view of many in describing this interpretation as: “Impractical and tantamount to eliminating the ability of employers to adequately staff their shifts and/or discipline employees for violating workplace rules.” This interpretation was also felt to limit an employer’s ability to enforce call-in procedures. One employer’s comment said: “The inability of an employer to insist that employees on FMLA leave comply with a call-in procedure…invites abuse from employees who are medically approved for intermittent FMLA leave and, subsequently, give their employer little or no notice leading up to their sporadic absence.”iv Loss of management control was cited as a result of abuse of the intermittent leave function. One employer stated, “Many employees will request FMLA as soon as they are placed in the discipline system for attendance.” Others said that the abuse took the form of employees using leave to cover for simple tardiness or a desire to leave work early, or those who were seeking to alter their work schedule by securing a different shift. Regarding the impact on employee morale, the DOL report cites many comments stating intermittent leave provisions actually helped morale by reducing turnover. Many other comments held that apparent or actual abuse negatively affected those who had to regularly cover the open shifts. Southwest Airlines stated: “In 2006, Southwest employees…were asked what one thing they would change…In response, employees provided hundreds of unsolicited comments about FMLA abuse and its negative [effect] on morale.”v While the DOL concludes that intermittent leave continues to be the most contentious of FMLA provisions, the report also includes sections with commentary on these other issues: • Effects of the “Ragsdale” penalties (regarding whether or not a leave is officially designated as an FMLA leave) • Definition of “serious health condition” • Employee rights and responsibilities • Medical certification and verification process • Interplay of FMLA and the Americans with Disabilities Act • Transferring to an alternative position • Substitution of paid leave • Joint employment. Addressing Concerns through Other Provisions What is to be made of this information regarding intermittent leave? Unlike several other sections of the report, there are no recommendations for improvement, only a balancing observation of employer concerns. For example, the DOL received many comments from union and employee groups in support of intermittent leave. They cited statistics showing 65 percent of families with children were headed by either two working parents or one parent. For those families, intermittent leave is a critically important protection for those with children who have chronic health conditions. Despite the lack of specific recommendations for improvement, it is important to note that if some of the other recommendations made in the report were accepted, intermittent leave would not be nearly as burdensome. For instance, in the chapter regarding the definition of “serious health condition,” one employer commented that “The current definition is so vague that it is nearly impossible to define a condition that does not qualify as a serious health condition.” Suggestions for improvement focus on the definition, stating: “Unless verifiable medical complications arise, the health conditions…in the list—such as colds and flu—should never qualify as serious health conditions.” Another elaborated: “…for example, a common cold should never be an FMLA qualifying condition. However, if it 25 HR Pulse Winter 2007 >>
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