The Family and Medical Leave Act of 1993 (FMLA) provides that covered workers are entitled to take up to 12 weeks of unpaid leave to care for newly born or adopted children, tend to ailing relatives, or recuperate from poor health or injuries. Following a worker's FMLA leave, his or her employer must restore the worker to his or her old job or a new position with equivalent duties and pay.

Many critical details of family and medical leave-such as what qualifies as a "serious health condition," how employers may communicate with health care providers, and how leave time should be measured-are spelled out in Clinton-era regulations. But a decade of experience with family and medical leave has revealed flaws in these regulations that put unnecessary burdens on employers and encourage misuse by employees. The Department of Labor (DOL) should thoroughly review the FMLA regulations and issue new rules that address their shortcomings.

Opportunities for Abuse

It is hard to argue with the intentions behind the Family and Medical Leave Act of 1993. We can all sympathize with the new parent who wants to take care of his or her child and the worker who needs to take time off to care for a sick relative or recover from a serious health condition. And the law has brought some benefits: In general, its provisions for leave for the birth of a child or to take care of ailing relatives work reasonably well.

When FMLA was passed, Congress's focus was on providing leave for workers to care for children and sick relatives, but contrary to the expectations of the law's sponsors, two-thirds of workers who take FMLA leave use the law to care for their own ailments. Many problems have cropped up with these cases. Poorly drafted rules complicate the administration of FMLA leave and open up opportunities for misuse. Half of human resources experts in one poll said that they have been forced to give leave that they believe was unjustified, and one-third have received complaints from employees about their coworkers misusing FMLA.[1] The scope of the problem may be massive. Unscheduled absences in American workplaces are on the rise, jumping by 20 percent from 2003 to 2004.[2]

The vast majority of American workers are conscientious about their jobs and suffer when FMLA is misused. Employers report that when an employee takes FMLA leave, the most common method for dealing with the absent worker is to pass his or her duties to coworkers, rather than hire temporary help. Misuse of leave increases the workload borne by coworkers, without necessarily increasing their pay.

Forging New Rules

There is a pressing need for new rules that correct the imbalances of the current regulations and bring the rules closer to Congress's intent.

Under the current regulations, employers cannot contact an employee's doctor without the employee's permission, even to ask for an explanation of why leave is necessary or when an employee might be able to return to work. Thus, employers find it difficult to investigate suspicious leave applications or plan for an employee's absence and return. Even with an employee's permission, employers cannot contact health care providers directly but must instead work through a third party, increasing the risk of miscommunication and confusion. Employers, who are obligated to give leave and then return employees to their old positions, deserve as complete a description of their employees' conditions as possible, especially regarding recovery time, the possibility of complications or delays, and the need for light duty or other special arrangements. This can be done while still respecting the doctor-patient relationship.

The FMLA also allows for the use of "intermittent leave," which is available for employees who need periodic treatment but are otherwise able to work. FMLA allows workers to take the full 12 weeks intermittently over the course of a year. But the current rules allow for employees to take "intermittent leave" with little notice and in very small increments. Conceivably, an employee could take intermittent leave for an hour every day and never exhaust the 12 weeks of FMLA leave. In some cases, employees have taken advantage of intermittent leave to insulate themselves from discipline for chronic tardiness. New rules should limit the use of intermittent leave; allowing employers to measure intermittent leave in half-day increments would encourage employees to make the best use of intermittent leave.

DOL should once again allow employers to reward employees with perfect or near-perfect attendance records. Under the current rules, an employer is required to treat an employee who takes three months of FMLA leave but does not use any regular sick leave as having a perfect attendance record, an absurd result. This rule should be made more flexible: Employers should be allowed to offer reasonable bonuses to their most reliable workers and consider FMLA leave when determining who qualifies.

Further complicating matters is the fact that these rules, intended to cover employees with severe ailments, are being applied to relatively mild conditions like colds, the flu, and headaches. The problem is that current regulations laxly define the term "serious health condition," which includes any illness or injury that

• requires three days of recovery,
• involves a visit to a health care provider, and
• entails continuing care, which may consist of as little as receiving a prescription, scheduling a follow-up doctors visit, or being referred to a physical therapist.

This low threshold means that relatively minor ailments can trigger FMLA. For instance, a worker with a persistent head cold might schedule an appointment with a doctor, motivated by misplaced but honest concern that he might have a more serious malady. If the doctor diagnoses an ordinary head cold and, to allay the patient's fears and speed up recovery, writes a prescription for a decongestant, then, under the current rules, this head cold now qualifies as a "serious health condition" once the employee misses a third day of work. That, in turn, could trigger all the FMLA rules. Minor ailments, from which complete recovery can be expected in less than a week, should be explicitly exempted from FMLA.

Conclusion

The current rules give a minority of cynical employees the opportunity to exploit FMLA. Lax rules defining a "serious medical condition" mean that FMLA applies to employees with relatively mild ailments, and needless limits on contact with health care providers make it more likely that those who flout the rules can get away with it. Even worse, employers and honest employees bear the burden of these unjustified absences.

The Family and Medical Leave Act was a well-intentioned piece of legislation that has in some instances been poorly implemented. Fixing these problems will not require changes to the law itself, but only new regulations that strike a balance between the desire to provide workers with time off to take care of themselves and their loved ones and employers' need to run efficient workplaces. By bringing FMLA regulations into line with Congress's intent and limiting FMLA to serious injuries and illnesses, the Department of Labor can restore that balance and improve workplace conditions while keeping FMLA leave available for those who need it the most.

Paul Kersey is Bradley Visiting Fellow in Labor Policy at The Heritage Foundation.