FMLA Creates Concern over Business Management and Attendance

June 28, 2007 ( - The U.S. Department of Labor (DoL) released Family and Medical Leave Act Regulations: A Report on the Department of Labor's Request for Information, which indicates employers are concerned over FMLA-created business management and attendance control issues.

The comments received by the DoL show the FMLA is generally working well and many employees and employers are not having noteworthy FMLA-related problems, according to a report summary. However, employees often expressed a desire for a greater leave entitlement, while employers voiced concern about their ability to manage business operations and attendance control issues.

The report summary said the majority of comments submitted in response to the RFI addressed three primary topics:

  • gratitude from employees who have used family and medical leave and descriptions of how it allowed them to balance their work and family care responsibilities, particularly when they had their own serious health condition or were needed to care for a family member;
  • a desire for expanded benefits, such as more time off, paid benefits, and coverage for additional family members; frustration by employers about difficulties in maintaining necessary staffing levels and controlling attendance problems in their workplaces as a result of unscheduled intermittent leave used by employees who have chronic health conditions.

Suggestions received by commenters for statutory changes to expand the FMLA included:

  • provide paid maternity leave,
  • cover the care of additional family members, such as siblings,
  • change the 75-mile eligibility test,
  • reduce the coverage threshold below 50 employees, and
  • provide coverage for part-time workers.

The DoL said the suggestions are beyond its authority to address.

Certain types of industries and worksites and their workers appear to be more impacted by unscheduled intermittent FMLA leave-taking than others, in particular those whose business operations have a highly time-sensitive component, such as delivery, transportation, transit, telecommunications, health care, assembly-line manufacturing, and public safety sectors.

While many employer comments used the words “abuse” and “misuse” to describe employee use of unscheduled intermittent leave, the DoL said it cannot assess from the record how much leave taking is “abuse” and how much is legitimate.

A notable finding from the comments received was that none of the parties involved with the medical certification process are happy with the current system. Employees are concerned about the time and cost of visits to health care providers to obtain medical certifications and the potential for invasion of their privacy, while employers, especially when it comes to intermittent leave use, seek predictability in attendance and are frustrated with medical certifications that do not provide meaningful guidance. Health care providers complain they cannot predict how many times a flare-up of a particular condition will occur.

The information also showed many employees still do not fully understand their rights under the law or the procedures they must follow when seeking FMLA leave. As an example the DoL said many employees are misinformed about the fact that paid leave can be substituted for, and run concurrently with, an employee’s FMLA leave. According to the summary, even among employees who possess a general awareness of the law, many do not know how the FMLA applies to their individual circumstances. The Department said it has more work to do to further educate employees and employers regarding their rights and responsibilities under the law.

The full report can be accessed here .