The Family and Medical Leave Act has hit a milestone: 20 years of providing job security for working people who need time off to care for their families or resolve family-related or medical issues. And while few dispute the benefits of FMLA, a whole lot of employers believe that administering the law is more than a little burdensome.
In February, Warner Norcross & Judd conducted a survey of HR professionals to gauge their feelings about the law; 118 of them responded. Results showed that 69 percent of respondents think administering the law is an “undue burden” on their organizations.
Our survey came in the wake of a sunny report from the U.S. Department of Labor last month that proclaimed “employers generally find it easy to comply with the law” and FMLA has resulted in “very little disruption in the workplace.”
Meanwhile, most respondents to our survey said FMLA laws pose an “increased administrative burden” and result in “unpredictable staffing levels.”
Coupled with amendments to the Americans with Disabilities Act, “My job is becoming increasingly impossible because of all the accommodations that have to be made,” said one West Michigan HR professional who works with about 500 employees.
The lines have “gotten blurry,” agreed Jonathan Kok, Chair of Warner’s Labor and Employment Practice Group. “Because of the ADA Amendments Act, many employees who utilize FMLA are now considered ‘disabled’ under the ADA, so when their FMLA leave expires they may still be eligible for additional leave under the ADA as a reasonable accommodation. Employers don’t know how much leave they have to provide someone and the government has provided scant assistance in this regard.”
Kok advises employers to carefully document all requests for leave and to talk to an attorney before terminating an employee who has exhausted his or her FMLA leave because the employer may have an obligation to provide additional leave. Fortunately, the courts have made clear that employers have no obligation to provide unlimited leave.
Documentation and a strict adherence to the rules have helped another HR professional, this one for a much larger Michigan-based manufacturer, discourage misuse of family and medical leave. She believes that many smaller companies grant most FMLA requests, valid or not, because they don’t have the manpower or expertise to properly manage them.
“We have ordered surveillance on people. We have terminated employment for those who abuse FMLA,” she said. “Managing it this way makes us look consistent. We treat everybody the same and we stand behind the people who have legitimate reasons to be off.”
Even small companies have used surveillance effectively, Kok said. “FMLA abuse is like a virus. Once it gets in, it often spreads. And then it’s difficult to get rid of,” he said. “If you are having that problem, surveillance of suspected offenders may be the best remedy.”
On a more optimistic note, the DOL also reported that the law has been a valuable tool for millions of workers and their families, many of whom would have lost their jobs without it. Since it was adopted in 1993, amendments have helped military families receive time off to tend to service members’ injuries or care for their families during deployment.
“Plus, about 90 percent of employees return to their jobs after using FMLA so, in many cases, it is a worthwhile investment in worker retention,” Kok said. “The key is to identify and deal with potential abusers so your workforce does not develop a culture of abuse.”
What undue burdens does FMLA impose on your organization?
We recently asked clients how they feel about administering the Family and Medical Leave Act. The findings show that many employers find it to be overly burdensome.
Do you agree with the U.S. Department of Labor’s assessment that FMLA has not imposed an undue burden on most employers?