News & Information

 

FEATURE PRODUCTS

Understanding the New Disability and Genetic Discrimination Laws of 2008
Learn how disability will be defined under the new Amendments Act and how to avoid discriminating against those who have a genetic marker for a disease.

Learn More »

LABOR & EMPLOYMENT LAW — 8/13/08

Intermittent leave poses greatest FMLA challenge for employers, survey finds

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, with more than two-fifths (42%) of human resources management respondents citing the problem.

The survey was sent to 12,080 WAW members and posted on the organization's Web site, after the Department of Labor released proposed amendments to FMLA regulations back in February. Among the respondents, 11 percent worked for employers with less than 100 employees, 26 percent had 100 to 499 employees, 19 percent had 1,000 to 2,499 employees; and 17 percent had at least 5,000 employees.

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.

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, survey respondents said.

HR 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. Among other favored procedural changes:

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

Only a small amount of HR 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.

More information on the WorldatWork survey, FMLA Practices and Perspectives, is available at http://www.worldatwork.org.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

Visit our News Library to read more news stories.