Introduction
Basically, the Family and Medical Leave Act of 1993 (FMLA) helps the employees balance their and family life. The FMLA entitles the eligible employees of the employers to take the unpaid and job-protected leave with the specified family and medical reason. The act emphasized that the covered employers offer up to twelve weeks of unpaid, job-protected leave to the certain eligible employee. A job-protected leave means that after returning from the FMLA leave, the employee has the right to go back to the equivalent job with the same benefits, pay, and job description. Correspondingly, the employee is entitled to the continuation of the health insurance coverage under the terms and conditions implemented by the act. Specifically, an employee is eligible to take the leave if he or she have worked at least a year for the covered employers, provided the eligible employee has worked for 1,250 hours within twelve months in the covered employer with a minimum of 50 employees within 75 miles. In addition, the FMLA allows the employee to take leave on an intermittent basis or a reduces work schedule under considerable circumstances. Unfortunately, after years of implementation, as documented in at several Congressional hearings, the medical leave provisions of the FMLA led to a widespread employer confusion and at the same time, the employee abuse to the employer. The regulations of the Department of Labor (DOL) and some conflicting interpretations of the law resulted in different administrative challenges, costs, and a growing portion of abuse of the workforce. It caused significant issues, especially in the workplace among the employees assigned to cover the duties of the employees on leave.
Overview of the Acts
Former U. S. President Bill Clinton signed the Family Leave Bill into Law on February 5, 1993, at the Rose Garden of the White House known as FMLA Act. Today, the FMLA remains the only piece of federal legislation that specifically focusing on the assistance of the workers to manage their duties in the workplace and at home. The signing of the FMLA demonstrated the recognition of the reality happening in the community, especially the full-time working parents. The FMLA only applies to the employers that meet the certain criteria and they are considered as covered employers both in private and public sectors. The FMLA covers the employers in the (1) Private-sector employer with a minimum of 50 or more employees for a minimum of 20 weeks preceding or current calendar year that includes the joint employer or successor in interest to the covered employer; (2) Public agencies such as local, State, or Federal government, regardless of the number of employees working in the agency; and (3) Private and public elementary and secondary institutions, regardless of the numbers of employees it employs .
In order to be eligible for FMLA leave, the said employees must meet the employee eligibility required by the act. It implies that the eligible employees are only entitled to take the FMLA leave if they (1) work for the covered employer only; (2) worked for the covered employer for a minimum of 12 months; (3) have a minimum of 1,250 hours of service for the covered employer within 12 months immediately preceding the leave period; and (4) work at the location wherein the covered employer has a minimum of 50 employees within 75 miles. In addition, George W. Bush vetoed an FMLA expansion and later signed into law by President Barrack Obama that the eligible employee is allowed to take up to 26 workweeks of leave during a single 12-month period to care for the covered servicemember with a serious injury or sickness or the employee is the son, daughter, spouse, or parent of the service member.
Rights and Policies
Reasons to Taking a Leave
The FMLA leave is granted for any of the reasons (1) to care for the child after birth, the placement for adoption or foster care of the employee; (2) to care for the spouse, his or her child, or a serious health condition of the parent of the employee; and (3) for a severe physical condition that hinders the employee to perform his or her duty. However, the employee on leave may substitute the accrued paid leave for the FMLA leave with the agreement between the employee and the employer, respectively. As clearly stated that while the employee is on leave, the covered employer must provide the group health insurance coverage of the employee continuously.
Notice and Certification
The eligible employee is necessary to present the advance leave notice or medical certificate; however, the requested leave will be deprived of in case the requirement are not being complied. The requirements are (1) the requesting party (employee) must provide a 30-day advance notice for the foreseeable leave; (2) the employer requires the employee a medical certificate to support his or her appeal for leave, especially in a serious physical condition; and (3) the employer requires the second or another option, a health report provided by the physician to go back to work.
Benefits and Protection
During the FMLA leave of the employee, the employer must offer (1) a continuous the health coverage under any health plan group of the employee; (2) when the employee return from leave, he or she must be reinstated to his or her original or equivalent position with the same benefits, pay, and the employment terms: and (3) the utilization of the FMLA does not result in any loss of the employment benefit that accumulated prior to the employee's leave.
Illegal Acts by the Employers
According to the implemented rules of the FMLA, it is unlawful for the covered employer to (1) impede with, control, or refute the implementation of any right granted in the FMLA terms; and (2) to discriminate or discharge any employee for contrasting any practice against FMLA or any involvement of the proceeding relating or under FMLA.
Enforcement
The United States Department of Labor has the full authority (1) to examine and determine objections of any violation; and (2) the eligible employee may convey a legal action against the covered employer for any violation. It implies that the FMLA cannot affect the Federal or State laws that prohibit discrimination, or surpass any local or State law or joint agreement that provides greater rights.
Abuse of FMLA Leave
The medical leave provisions of the FMLA led to widespread employer confusion and employee abuse of the FMLA leave. As documented in the congressional hearings, the Labor Department regulations have some conflicting interpretations of the law that resulted in the increased of different administrative issues in the workplace. Specifically, the abuse of the FMLA leave has certainly caused significant morale issues, negative effect on the profitability, productivity, turnover, career development, and absenteeism in the workplace, among employees that are assigned to cover up the work of the employee on leave. In 2007, the United States Chamber of Commerce, the largest business federation in the world led by Randel K. Johnson, VP of Labor, Immigration and Employee Benefits and Marc Freedman, Director of Labor Law Policy informed DOL that the agency have been directly impacted by the regulations issued by the department of Labor in the implementation of the law. The Chamber of Commerce stated that the regulations are puzzled with peculiarities, inconsistencies, and terms that position the employers at severe disadvantages to maintaining an essential and steadfast workforce levels, and the planning for absences. The Chamber’s advocacy is the reformation of the FMLA Act that allows the covered employers greater capability to manage appropriately absenteeism traceable to abuse of the FMLA leave. For example, the reforms include the (1)restoring of the original definition of serious health condition that does not cover minor ailments like common cold; (2) providing the employers more tools to guarantee that leave taken for serious health conditions is used consistent with the medical conditions; (3) reducing the burden on the employers to monitor intermittent leave in augmentations as small as six minutes; and (4) permitting employers to utilize attendance award programs that precisely reveal the actual attendance of the employee at work. Evidently, some employees who are granted with the intermittent leave is almost certainly the number one dissatisfaction that employers say about the FMLA Act. Particularly, the circumstance happens in which there is a need to utilize intermittent leave time that is apparently unforeseeable or without advance notice provided.
As a statutory provision, FMLA requires the covered employers to act in accordance with these obligations as the right and protection. Indeed, the rules are important, at times, difficult realization for the employers in dealing with the challenges of administering intermittent FMLA leave requests and operate normally. However, the covered employers go beyond the FMLA and other laws because most of the companies are more focused on retaining talent for the business and maximizing the effectiveness to compete globally. One of the keys to achieving a harmonious workplace is flexibility; to adapt the technical advances and figure out the means to respond the issues and challenges about FMLA. On the other hand, the CEO of DOL with the collaboration of the Wage and Hour Division and Abt Associates presented the 2012 survey of the FMLA, both the covered employer workplace practices and the eligible employee leave-taking patterns. Statistically, most of the covered worksites with a large number of eligible employees within 75 miles have reported little difficulty in complying with the FMLA. On the other hand, larger worksites are more apt to report some difficulty in complying and about 30 percent reported the increased of the cost of administering the FMLA. In fact, few worksites perceived negative effects of complying with the FMLA, especially on the employee morale, productivity, turnover, absenteeism, career advancement, and profitability of the business; however, the negative reports are more common among large worksites. Correspondingly, there are considerable discussion and concern expressed by some covered employers regarding the intermittent leave with 6 percent or less and 25 percent weighted by employees of the reports about negative impacts on profitability and productivity.
Conclusion
Based on the survey conducted in 2012, it shows that the use of leave of the eligible employees and the grant and administration of leave by the covered employers have achieved the level of stability. It implies that the eligible employees actively used the intended benefits established by the FMLA Act. However, it appears to have a limited knowledge of what the FMLA Act specifically requires and covers. Similarly, most of the covered employers report that complying with the FMLA has imposed the minimal burden on their operations while a few covered employers reported difficulty complying.
Reference
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