Happy 25th birthday, FMLA!
As you might imagine, there may not be a more exciting day for me all year. After all, there is only one day ever in which my favorite federal statute celebrates its silver anniversary! Picture me getting my inner Jimmy Stewart on (after Clarence the Angel had just saved him), shouting through the streets of small town Chicago, “Happy birthday you wonderful old FMLA!”
In fact, it’s been a full weekend celebration at the Nowak abode. I’ve been singing Bill Withers to the Nowak kids all weekend: “Lean on Me, F – M – L – A . . . And I’ll be your friend . . . ” [To my dismay, the kids have never been more eager for Monday morning to arrive.] And yes, we even broke out the 25th birthday cake in honor of the FMLA. (See photo at right.)
Where Have We Been, Where are We Going?
In all seriousness, this is a critical moment. Back on February 5, 1993, President Bill Clinton signed the FMLA into law. This groundbreaking law has allowed new parents time off from their job to bond with their children and afforded workers time away to care for gravely ill family members or recover from their own serious health problems — all without fear of losing their jobs.
Yet, 25 years later, there is still much work to be done. We need to do more to protect employers’ interests, but the employer community also must take a big step up and and offer some meaningful level of paid FMLA leave to our employees. [They should do if for no other reason that the tide is surely turning.] Conversely, employees must understand their role in safeguarding the FMLA by using time away from work with integrity and only for the reasons intended under federal law.
On this special day, I’ve taken the liberty of penning an open letter to all FMLA stakeholders — employers, employees, and the Department of Labor itself. Take it for what it’s worth, but I hope it adds some value to our ongoing discussions.
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Dear Employers:
Count me among the lucky ones the law has benefited: Several years back, the FMLA afforded me a leave of absence as I held my father’s hand and comforted him in the days before he died of cancer. It also allowed me time to be with my four beautiful children after they were born. Like many employers, my law firm supported my need to be away from work — it didn’t require a federal law to mandate my leave time. And it paid for my time to be with my dad in his last days.
Sure, many employees across America enjoy the protections of the FMLA, but they use it without the benefit of a paycheck because there is no federal mandate for paid leave.
Employers, as we celebrate 25 years of FMLA goodness, it’s time to change the course of history.Follow the lead of employers like an old client of mine, the YWCA of Metropolitan Chicago, and provide a meaningful level of paid FMLA leave to your employees. This past month, the YWCA announced that it would pay for the first six weeks of an employee’s 12 weeks of FMLA leave. YWCA joins a growing number of employers who are helping the American workplace align itself with the industrialized world. Good for you, YWCA, as well as the many other American employers doing the same.
Why do this? There is plenty to be gained by adopting paid FMLA leave — affirming a commitment to work/life balance, improving your recruitment and retention of the best candidates, boosting employee morale. And as I suggested in a prior post, it’s simply the right thing to do.
For those employers open to expanding their minds on this topic, it’s also worth taking a look at the resources offered by the National Partnership for Women and Families, which has set up a unique web page for advancing paid FMLA leave:
There’s never been a better time to offer paid leave:
- As of January 2018, employers now earn a tax credit when voluntarily providing paid FMLA leave. The credit will range from 12.5 to 25% of the cost of each hour of paid leave, depending on how much of a worker’s regular earnings the benefit replaces. The federal government will cover 12.5 percent of the benefit’s costs if workers receive half of their regular earnings, increasing up to 25 percent if workers receive their entire regular earnings.
- I’ve even drafted a recommended paid FMLA policy for you. Last year, I partnered with non-profit organization Panorama to prepare such a policy, which can be accessed (for free!) here.
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Dear Employees:
It is not lost on me that the FMLA celebrates its 25th birthday on the day after Super Bowl Sunday — a day that is unrivaled for employees calling in sick and abusing FMLA leave. Indeed, physicians across the country will spend much of their time today writing doctor’s notes and completing medical certification, all in an effort to excuse Johnny for missing work.
This kind of abuse stinks to high heaven, and it’s one of the reasons employers have long grown cynical of your need for FMLA leave. Sure, employers understand the need for time off work after the birth of a child or for severe illnesses that will wipe you out from time to time.
But the stories get old — using FMLA leave because you’ve been out partying too much the night before or to extend your Florida beach vacation. This past year, I even counseled one of my clients through a situation where one of their employees took FMLA leave to cover the very period of time he served time in the county jail for a DUI conviction.
Employers want to feel the love again. But you’ll only earn this love by:
- Timely notifying your employer of the need for FMLA leave
- Being honest and having the utmost integrity in using FMLA leave only for its intended purpose
- Being a true partner with your employer in obtaining (timely and complete) certification to support your need for FMLA leave
‘Nuf said. You get my point. Now, get back to work!
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Dear Department of Labor:
You crazy little rascal! You’ve kept us on our toes for decades now with a well-intentioned federal statute but some awfully vague and ambiguous regulations that tend to cause us fits.
How ’bout we celebrate the FMLA’s silver birthday with a few meaningful changes to those regulations that are particularly pesky? Let’s start with a few (or many):
- As for medical certification, I have several changes to recommend:
- When a certification is provided after the 15-day deadline, it’s late. Simple as that. However, when the employee has no excuse and doesn’t turn in the certification in a timely manner, the FMLA regulations (at 29 CFR 825.313) tell us that we can discipline the employee only for the days following Day 15. That’s kooky talk, and it has no basis in the statute. If the employee turns in a late certification without excuse, the employer should be able to discipline back to Day 1 of the absence, not as of Day 16. [Hat tip to my fellow FMLA nerd, Megan Holstein]
- Allow employers to require that a specialist complete the certification. This worked well in a case I highlighted last year, as it ensures that the appropriate physician who is treating the employee and is most familiar with the medical condition is indeed the professional completing the form.
- When recertification undermines an employee’s frequency or duration of FMLA leave, why not tell us in as clear a manner as possible that the employee can be disciplined for the excessive absences? Right now, you offer us no guidance.
- When considering the “in loco parentis” standard, the “child” you are caring for actually should resemble a parent/child relationship. Over the years, you’ve watered down this standard so much that, as long as you’re providing day to day care or financial support it doesn’t matter. And if the child is 18 or older, he/she just needs to meet the “activities of daily living” test and you’re off to the races, regardless of whether that child is a fiancé, a neighbor or the friend at the local tavern. Ok, maybe not that last one, but yeah, kinda. [Hat tip to my FMLA bwudda, Matt Morris]
- Allow second opinions even in recertification situations. Do employees misuse leave only at the beginning of the FMLA year? Heck no. Some misuse leave throughout the year. Second opinions throughout the year make perfect sense to ensure the employee continues to utilize FMLA leave for a legitimate reason.
- Make the “varying work week” far more meaningful and practical. First, allow it to apply to much broader categories of employees. Second, base the 12-month average not on “hours scheduled” [duh, we have this rule because we don’t know what their schedule is in the first place] but on “hours worked” over 12 months (much better). [Hat tip to my FMLA partner-in crime, Marti Cardi]
- Allow transfer to an equivalent position during any type of intermittent leave, not just for planned medical treatment. Time and again my clients complain that the lack of an undue hardship argument under FMLA wreaks havoc on their operations, as they are unable to fill a position until the employee returns from leave.
P.S. Remember about six months ago when you promised you’d again provide us opinion letters to bring more clarity and meaning to the FMLA regulations? Ahem, we’re waiting . . .
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.
