Employee abuse of the intermittent leave benefit is the top complaint of employers that are subject to the Family and Medical Leave Act (FMLA), a recent survey of 450 WorldatWork (WAW) members found. More than two-fifths (42 percent) of the human resources management respondents cited this problem. The survey was sent electronically to 12,080 WAW members and posted on the organization’s Web site, after the Department of Labor released proposed amendments to FMLA regulations on February 11, 2008.

Although nearly half (49 percent) of intermittent FMLA absences were scheduled, 81 percent of users gave notice no more than 24 hours in advance, while more than half gave notice on the day of the requested absence or later, the survey found. More than three-fourths of the respondents (77 percent) expressed at least moderate difficulty with little or no notification prior to the FMLA absence. Tracking intermittent FMLA leave in order to comply with the law’s requirements also posed a major challenge (cited by 73 percent of respondents), hampered by confusion over to whom and when to provide notices, and inadequate information systems. Also challenging for administrators was coordinating the provisions of the FMLA with those of other laws such as the Americans with Disabilities Act, workers’ compensation, and other state laws.

Reasons for intermittent leave. The most common serious health conditions/reasons for which intermittent leave was taken were cancer treatment (68 percent); eldercare/child care issues (47 percent); migraines and headaches (43 percent); and other conditions, such as mental health/depression, pregnancy, surgery, and back problems (38 percent). Flare-ups of some health conditions, such as migraines, asthma, and arthritis, make it difficult for FMLA administrators to differentiate between normal use and abusive use, the survey respondents said.

Human resources professionals mostly support the DOL’s proposed procedural changes, particularly those requiring employees to provide longer advance notice, absence tracking, and greater medical documentation requests. The following list highlights other favored procedural changes:

• allowing employers to require medical recertification requests of a continuing condition at least every six months of absence (88 percent);
• requiring employees to give advance notice of nonemergency, foreseeable leaves and providing definitions of those terms (95 percent);
• changing the definition of continued treatment for a serious health condition by requiring at least two visits to a medical provider within 30 days (73 percent);
• excluding time spent performing light-duty work from the FMLA leave entitlement (53 percent);
• lengthening from two business days to five business days the employer requirement for notice to employees of eligibility and FMLA leave designation (87 percent);
• and allowing the employer direct contact with a medical provider for medical certification clarification (84 percent).

Minimum time limit wanted. Only a small amount of human resources respondents advocated eliminating intermittent leave altogether (24 percent), although the majority (69 percent) advocated requiring a minimum time limit (at least one hour, for example) for intermittent leave. Nearly three-fourths (72 percent) supported allowing employers to require medical documentation per “episode”/day of absence in cases of suspected leave abuse, and more than half (56 percent) supported setting a maximum amount of intermittent leave allowed in one year (such as less than 12 weeks). The majority (88 percent) would prefer to see a stricter definition of “serious health condition” to exclude the flu and colds. Many respondents (56 percent) also agreed that children older than age 18 who are not disabled should qualify as “immediate family members,” within parameters such as unmarried, younger than age 25, or dependent.

Nearly all (93 percent) of the respondents’ organizations are subject to the FMLA in 2008. In 2007, about 10 percent of employees, on average, used FMLA leave. However, at some organizations, nearly all (95 percent) of employees used such leave, and an average of 27 percent of the leave takers exhausted their 12 weeks. Few (5 percent) organizations track FMLA leave by type of medical condition. Administrative time requirements are not onerous -- providing notice and determining FMLA eligibility were the least time-consuming activities associated with FMLA administration (less than 30 minutes); while requesting and reviewing documentation and second and third opinions added a considerable amount of time.

Military leave provisions. With respect to the new military service provisions in the FMLA, the survey respondents would like to see the following measures implemented.

• a clear definition of “next of kin,”
• a clear definition of “qualifying exigency,”
• a time limit on the allowance of FMLA leave for “called to active duty” leave, preferably expressed as a specific number of days or months from the date active duty commences,
• allowing employers to require a copy of “called to active duty” military orders and to require proof of relationship,
• a statement from the employee or an affidavit from the military as preferred documentation to certify the qualifying exigency,
• clarification of whether “covered service member” leave entitles an employee to 26 weeks of leave in addition to 12 weeks of existing FMLA leave within the same 12-month period,
• allowing employers to choose the 12-month period determination method from the existing FMLA regulations for “covered service member” leave. Most favored the “rolling 12-month period” method, which 71 percent of respondents currently use. Only 58 percent of respondents require FMLA takers to use paid leave, while 40 percent allow it, and
• clarification of whether “covered service member” leave is a one-time allowance, per service member. Since many injuries and illnesses sustained in active duty last for more than one year and even for a lifetime, employers are concerned about the burden that they would face if employees were entitled to 26 weeks of leave each 12-month period for the same service member.

SOURCE: FMLA Practices and Perspectives, www.worldatwork.org.

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