Leave Policy/Compliance

Grappling with HR’s #1 Headache … the Family and Medical Leave Act (FMLA)

How BLR editors dealt with FMLA … one of the most complex compliance challenges ever to face HR … and the solution they found to handle it.

The Family and Medical Leave Act of 1993 has been called “HR’s #1 Headache.”
It’s easy to see why. While celebrating family values (even the law’s acronym, “FMLA,” has the sound of “family” in it), it can contribute mightily to instability in the workforce.

This is a law that allows your workers to be absent from the job for nearly a quarter of the year. Its granting of leave to bond with a new child has widespread application. And while the law’s authors may have intended that workers take weeks at a time of FMLA leave, the statute’s “intermittent leave” provision lets them request whatever time periods they feel they need. One attorney, whose firm bills in 6-minute increments, demanded 6-minute FMLA leaves. The courts upheld her right to have them.

The bottom line: A recent study calculated the total cost to business of the Family and Medical Leave Act in 2004, for replacement workers and other expenses, at $21 billion.

Whatever issues it raises for employers, the FMLA is here to stay. The law has enjoyed huge popular support. Sen. Hillary Clinton even proposed a major FMLA expansion that would cover attendance at a child’s school activities.

“How do we explain it to HR professionals?”

As soon as the FMLA was passed, every HR information provider in the nation had to grapple with how to explain it to HR professionals. There was a lot to explain, including the law’s complex interactions with other major federal law, including the Americans with Disabilities Act (ADA) and
Workers’ Compensation. State law added another layer of complexity.

Here at BLR, the result was a nearly 3-inch-thick reference we called The Family & Medical Leave Act Compliance Guide. The title was a slam-dunk. The rest was not.

In the end, the program’s editors, one of whom is a former Dept. of Labor staffer, decided to handle explaining the law this way:

No legalese, please! First and foremost was to honor a principle that’s been part of the culture here since the dawn of time (1977, in our case). That was to write the entire work in plain-English. “We write for line managers, not lawyers,” as founder Bob Brady puts it.

Break it down. Second, we had to slice this massive law into bite-sized pieces. One example: Explain the allowable grounds for leave before getting into key definitions such as “serious health condition.” And exceptions were included right with the rules, to be better seen in context.

Explain it in sequence. The editors then decided to explain the law in the sequence that you’d experience it. The narrative runs through leave requests before it turns to pay and benefits during the leave. That’s followed with a section on return from leave. And the sequence concludes with FMLA paperwork, such as follow-up time tracking and recordkeeping.

Chart the interactions. The FMLA didn’t invent medical leave. There were already existing provisions in the ADA and other laws that had to be accommodated alongside the FMLA in your overall leave policy scheme. The editors, therefore, double-covered this aspect with both narrative and charts, showing how the laws interact. They also included extensive explanations of the ADA, USERRA, workers’ comp, and even jury duty so that those laws would be seen in an FMLA context. Interplay with COBRA and ERISA was also covered.

Then, because state law usually trumps the federal when state requirements are more to the worker’s advantage, the editors included narrative and charts explaining how state leave law differs from the FMLA in all 50 states. Many feel this chart section, pages 1000-3 through 1000-12, is one of the most valuable elements of the program.

“Build a program, not a book.” Experience with HR professionals shows that they overwhelmingly want “one-stop shopping” on compliance issues. That means information, forms, model policies, and government guidance materials all in one place.
That place is the final section of the FMLA Compliance Guide.

Dealing with FMLA Changes – An Ongoing Need

Change is a compliance constant. Legislative revisions, agency and court decisions, and case study experience all modify what you need to know about any given law. For that reason, the editors added both quarterly updates and a quarterly newsletter, “FMLA Policy, Practice & Legal Update,” to the program. There is no charge for these additional elements.

The completed program remains one of BLR’s proudest. And reaction from the field has backed up our confidence in it. We did, however, wonder if there would be enough new material on the FMLA to keep the updates going.

“Absolutely,” quipped one editor. “Especially if Hillary Clinton gets back in the FMLA picture.”

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  • gladysb

    While I understand every law as its potential for abuse both from the employee and the employer and agree that some review and necessary modifications maybe necessary. I don’t not subscribe to the analogy that “all employees” are abusing the FMLA law.
    First, most employers do not pay for FMLA – its taken with out pay.
    Second, most employees do not have any type of vacation, personal leave or sick time and therefore have no choice but to take this time in order to protect their jobs.
    Third, employers…if you want less abuse of the FMLA then take a hard look at your benefit package and see if it fits the needs of your employees. i.e. a look at your vacation, personal leave days and sick time may find that employees are using FMLA and saving their benefits. I seem to remember, that an employer can require that their employees use up all of their available time before they take any FMLA. Maybe you’re not enforcing this requirement.
    Fourth, a lot of employees have elderly parents to care for and have to take them to the doctor, testing etc. so FMLA that allows for this would be a good thing. As for time off to attend school meetings, how often are we talking, 2 or 3x’s maybe. So no, unless the child is a problem in school and the parent needs time off to resolve the situation maybe in order.
    Fith, as far as documentation. Yes, limited though, because employers could abuse this as well, by asking for excessive amounts of the same information over and over again or challenging the documentation as a way of discouraging participation and making it uncomfortable so employees stop requesting FMLA. So some protection from that type of situation is needed.