REGULATION IN BRIEF:
Family Medical Leave Act
August 10, 2004 No. 17
Background: Under the Family Medical Leave Act of 1993, (FMLA) employers are required to grant employees up to 12 weeks of unpaid leave to care for a serious health condition, to care for a sick parent or child, or for the birth or adoption of a child. The FMLA applies to employers with 50 or more employees within 75 miles of their location, and in order to qualify employees must have been employed by that same employer for at least a year and must have worked a minimum of 1,250 hours. Regulations issued by the Department of Labor (DOL) have been criticized as being vague about what illnesses are sufficiently serious to trigger FMLA leave. Critics have also argued that current provisions for intermittent leave are burdensome, in particular the requirement that employers measure leave in increments as small as one minute.
Status: There is currently no formal process underway to review these regulations. Proposed amendments to the FMLA (S. 320, HR 35) would revise the definition of “serious health condition” to exclude short-term illnesses or injuries “for which treatment and recovery are very brief.” This legislation would also add a notice requirement when employees use FMLA leave, and would allow employers to grant intermittent leave in half-day increments. Proponents of the FMLA have offered several bills or amendments expanding the coverage of the FMLA, such as requiring leave to care for domestic partners, in-laws, grandparents, and siblings (HR 1430).
Discussion: Leave arrangements, like most other terms and conditions of employment, should be determined by employers and employees in the free market. The Family Medical Leave Act, for all its noble intentions, imposes a one-size-fits-all leave standard on all covered businesses, reducing flexibility for both employers and employees. Having created a federal standard, Congress is obligated to ensure that federal leave standard is fair and not unduly burdensome to either employers or employees. However, the current regulations are open to abuse by dishonest employees, and create unnecessary recordkeeping burdens for employers. A recent survey conducted by the Society for Human Resource Management shows that 52 percent of employers believe they have been forced to grant unjustified leave under the FMLA.
Action item: Ideally the Family Medical Leave Act should be repealed. In the meantime, the regulations promulgated under FMLA should be modified to limit the use of FMLA leave to situations involving severe illnesses or injuries. Employers should be permitted to track leave using larger units of time in order to reduce the cost of recordkeeping and limit the use of intermittent leave. Finally the regulations should be revised to allow for closer scrutiny of leave requests by employers, in order to prevent misuse of FMLA leave.
This brief was prepared by Heritage Visiting Fellow Paul Kersey.
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