Corinne Ramey

Revising the Family Medical Leave Act: The Sick-Leave Law Gets Sick

Imagine if your boss could call your family doctor to find out if you were really sick, and while on the phone ask for confidential medical information. Or imagine if further constraints on missing work for emergency care forced you to sacrifice job security instead of taking care of a spouse who has a heart attack or a child with a medical emergency. A current law, the Family and Medical Leave Act (FMLA), protects you from these scenarios. However, if the 500 pages of changes proposed yesterday by the Department of Labor go into effect, the law could change the leave policies for millions of American workers.

The act, which applies to businesses with over 50 employees working within a 75-mile radius of the business, allows workers 12 weeks of unpaid leave within a 12-month period to take care of a family member, new baby, or for reasons related to a serious medical condition. According to the Associated Press, about seven million people took FMLA leave during 2005. The FMLA has not been changed since Bill Clinton signed it into law in 1993.

The proposed changes include several measures that tighten current restrictions on sick day policy. Workers would be required to see a doctor at least twice during a 30-day period if claiming a "serious health condition." The changes would also allow bosses to directly contact an employee's doctor who is taking a sick day. Additionally, employers could also exclude people who used FMLA time from perfect attendance awards and require "fitness-for-duty" evaluations for people who took intermittent FMLA time. The evaluations will make employees prove they can still do their jobs after returning from intermittent sick leave.

The changes also include expanded leave for people taking care of military veterans. The proposed changes will allow workers -- including spouses, children, parents, and next of kin -- up to 26 weeks of of FMLA leave to care for a service member who is ill or seriously injured. The veteran provision is available only once.

With the exception of the expansion of leave time for veterans' care, the proposed changes to the FMLA are a step backwards for workers' rights. The provision that allows employers to discuss medical information directly with their employees' doctors is a violation of privacy and doctor-patient confidentiality. The measures that make intermittent leave for chronic conditions harder to obtain will overwhelmingly affect low-income workers, many of whom may not have health insurance and may not see the same doctor regularly. According to a statement issued by the National Partnership for Women & Families, the new changes to policies on unexpected leave are also problematic:

"The Administration reportedly also is proposing to allow employers to place new constraints on when and how workers can take leave at unexpected times, such as a heart attack or to care for a parent or child with a medical emergency. The FMLA was designed to give workers real flexibility in such situations, and new regulations must not let employers take away that flexibility when it is needed most."

Additionally, the campaign of Hillary Clinton has issued a press release opposing the regulations, saying that the FMLA should be expanded, not reduced. "Yet, the Bush Administration has acted once again to tilt the balance of power towards corporations instead of hardworking Americans," she said.

Employer groups have largely supported the proposed changes, saying that they will prevent people from taking unmerited time off. A statement issued by the National Association of Manufacturers (NAM) also supported the new regulations. The NAM acknowledges that some leave is important, such as the ability to "take time off for the birth of a child, attend to a seriously ill family member and maintain the job protected leave they need for their own medical care." However, the group believes the FMLA has gone too far towards allowing sick leave. Part of the statement reads,

"The FMLA was never intended to turn full-time jobs into part-time jobs. It was never intended to allow employees to take sporadic leave without no notice to employers, nor to add workload to those covering the surprise absences of their co-workers."

However, contrary to NAM's assertions, sick leave policy doesn't "turn full-time jobs into part-time jobs," but rather protects other workers from getting sick. The city of San Francisco can be seen as a kind of laboratory for sick leave policy, having just celebrated the one year anniversary of this first-in-the-nation legislation, which was passed this past year by voter referendum. The policy, which was implemented on February 5, 2007, requires that employers provide one hour of paid sick leave for every 30 hours worked. Small businesses with less than 10 employees have a cap of 40 hours of leave per worker per year and larger businesses have a cap of 72 hours.

Although businesses initially complained about the measure, most complaints centered around setting up the tracking systems to count employees hours and sick leave time. Now, a year later, most businesses have "Local business groups said they have received relatively few complaints about the law from employers," reported the San Francisco Chronicle. Employees noted that the law was overwhelmingly helpful, allowing them to stay home and get better faster instead of letting sicknesses linger and infecting colleagues. Some workers also used the paid sick-leave days to care for sick children or dependents. The San Francisco policy was one of DMI's "Ten Best Public Policies of 2007" for its ability to "lower employee turnover, raise productivity with a healthier workforce, reduce the rate of workplace-related illness as fewer people go to work with contagious conditions, and allow illnesses to get treated before they become serious."

San Francisco's policy is significantly more progressive than even the current FMLA, yet the city has yet to experience the problems predicted by industry groups that initially opposed the law. Congress would be wise to reject the current changes to the FMLA in order to better the lives of working Americans. In the long run, healthy employees and healthy families will lead to a healthy -- and more economically productive -- middle class.

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Posted at 6:47 AM, Feb 12, 2008 in Economy | Employment | Health Care
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