September 11, 2007

September 11, 2007 | Commentary on Jobs, Jobs and Labor Policy

Unscrupulous Workers Abusing Family Leave Act

Would you call in sick to work because you needed therapy? Deer-hunting therapy, that is. What about having a wart? It seems ridiculous, doesn't it? But that is how some irresponsible employees are misusing the Family and Medical Leave Act.

Congress passed the act in 1993 to ensure that workers could take unpaid time off work to be with sick family members, or for their own serious medical conditions. It sounds - and is - perfectly reasonable. Workers shouldn't fear having to lose their job for attending to their children when they're sick.

Unfortunately, Congress cannot repeal the law of unintended consequences. The act has helped families in need, but it's been abused by workers who use it as a cover for laziness.

The act lets employees take leave for a "serious medical condition" but never defines what a "serious medical condition" is. Some doctors will certify almost anything as a serious condition. So in addition to taking time off work for a real illness, the act allows employees to take time off work for ailments that are trivial or non-existent - such as the worker who found the stress of rush-hour traffic so debilitating that she needed to take medical leave to drive home early every Friday.

Congress wanted to ensure that employers wouldn't punish employees for using taking leave, so they made it illegal to discipline workers for using family and medical leave. This protects workers in genuine need, but also means that employees who skip work can avoid any punishment by finding a way to label it medical leave.

Not surprisingly, medical leave requests spike on Mondays and Fridays, during the summertime, and during public holidays. Other workers take family and medical leave when their employers deny their vacation requests.

It isn't just time off work. Some workers take leave when faced with the "serious medical condition" of working a night shift. And since the Department of Labor has interpreted the act to mean that workers can take their 12 weeks of leave in minute intervals, some workers also use the act to avoid penalties for showing up late. They can simply sleep in and claim they needed an hour of medical leave that morning.

One worker called in sick as he walked in from the parking lot. That saved him from having a tardy on his record for arriving a minute late to work, but it's hardly family or medical leave. Many workers openly boast that they use the act to take time off work at will. Their co-workers ruefully refer to it as the Fridays and Mondays Leave Act.

When irresponsible workers misuse the Family and Medical Leave Act, their co-workers suffer. Most employers have difficulty finding replacement workers on short notice, so they do the only thing they can: reassign the work to their remaining employees.

Diligent workers must handle all their original work, plus the extra work dumped on them. Other workers must work extra shifts or do mandatory overtime when they would prefer time with their families.

Still more workers must forgo their vacations to do the work of employees who took fraudulent medical leave. That isn't what Congress meant the act to do.

Nor is it fair to give an employee who shows up to work late three times a week the same attendance bonus as a worker who arrives punctually every day. But the act forces employers to do this because they cannot penalize workers for taking leave under the federal law.

Now some members of Congress are touting proposals to expand the Family and Medical Leave Act to require paid sick leave. This will come as welcome news to workers like the manufacturing employee receiving regular care for his "chronic hypertension" at his girlfriend's house. But Congress should consider what will happen to the public and responsible workers when it forces employers to offer paid sick leave while preventing them from disciplining workers who abuse it.

James Sherk is a policy analyst in the Center for Data Analysis at The Heritage Foundation. This was distributed by McClatchy-Tribune Information Services.

About the Author

James Sherk Research Fellow, Labor Economics
Center for Data Analysis

First appeared in Courant.com