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Family leave act being reviewed

Businesses' complaints that workers abuse the law prompt the U.S. to seek public comment.

February 06, 2007|Molly Selvin | Times Staff Writer

Are stomach flu or migraine headaches serious enough illnesses to grant workers extended time off?

Business groups, which say workers are gaming the landmark 1993 Family and Medical Leave Act by taking extended time off for relatively minor ailments such as a headache or a sore back, are seeking to tighten the standards in the measure. Their complaints helped prompt the Labor Department to seek public comment on the law.

The agency's call -- the first since President Clinton signed the measure -- has stoked fears among labor and women's groups that the Bush administration intends to make it more difficult for workers to take extended leaves for serious illnesses or family needs. That would particularly hurt the 47% of the private workforce with no employer-paid sick leave, these groups say.

The act is "one of the most important advances for families in this nation's history," says Debra Ness, president of the National Partnership for Women & Families. Although she agreed that people with minor ailments aren't entitled to take leaves, business-backed changes could go too far, she said.

But managers say workers' abuse of the law causes scheduling nightmares, lost productivity and often escalates into costly lawsuits.

Some employees invoke the law as "an all-purpose 'get out of jail free' card on attendance issues," said David Dabbs, a Richmond, Va.-based lawyer who represents employers.

Although many employers are reluctant to discuss their concerns on the record for fear they'll be labeled as unsympathetic to their employees, Labor Department officials say a review is in order.

"We've realized we need some fresh information and fresh thinking on the issues that have developed over nearly a dozen years since the regulations were implemented," Victoria Lipnic, assistant secretary for the agency's Employment Standards Administration, said.

The assessment could prompt the agency to issue new regulations -- or take no action.

The family leave law guarantees workers as many as 12 weeks of unpaid leave to treat and recover from serious medical conditions, to care for an ailing family member or bond with a new baby.

The law has been popular with workers, particularly to cover childbirth and adoption. The Labor Department estimates that 2.4 million Americans took advantage of the law in 2005. The federal law applies to companies with 50 or more employees within 75 miles of the work site -- in effect excluding "mom and pop" operations.

In recent years, California and several other states have passed their own leave laws. The 2002 California Family Rights Act entitles new parents as many as 12 weeks to bond with their child. Under the state's Paid Family Leave, six weeks of that time can be paid, with pay ranging from $50 to $882 per week.

Although the state law provides stronger job protections for pregnant women and new parents, in other respects, the state and federal laws are comparable.

Thus, because employers are expected to comply with both state and federal laws, revisions to the federal leave law, particularly concerning medical problems not related to pregnancy, could affect Californians' leave options, say lawyers who practice in this area.

Two issues appear to be the most contentious with the federal law. The first is the definition of a "serious health condition" that qualifies for leave.

Current regulations define a serious condition as one requiring at least three consecutive days of treatment and recovery. The condition also must meet other standards, such as requiring a physician's care or hospitalization. Conditions that don't qualify include the common cold, flu, earaches, and routine dental or orthodontia problems.

The U.S. Chamber of Commerce and the National Assn. of Manufacturers advocate narrowing the range of eligible medical conditions to those necessitating a longer absence, believing the change will cut absenteeism. They also want to require more documentation to verify the seriousness of a worker's condition.

Ness of the National Partnership for Women & Families, a major supporter of the leave law that helped draft it, contends that workers who are gaming the system by repeatedly calling in sick are "discipline problems," not evidence of problems with the law.

She said the law provides enough provisions for employers to crack down on abusers. Toughening the law could make it more difficult for people with legitimately serious needs to take leaves, she said.

The second contentious issue involves employees who take leave occasionally for chronic or recurring medical conditions.

Business groups want to reduce the disruption caused by workers who take leave for an hour or two at a time over several months. Employers also fret over workers who, they suspect, invoke the leave act as an excuse to cut out before quitting time.

"The regulations as currently written can be read to severely limit an employer's ability to inquire about the reasons for an absence," employer attorney Dabbs said.

The Chamber of Commerce probably will ask the Labor Department to let employers clock short absences in half-day increments, said Randy Johnson, the group's vice president for labor and benefits.

But Ness said this change would cause workers to quickly exhaust their leaves, citing prenatal checkups as an example.

"You don't need a half day for that," she said.

The Labor Department's comment period closes Feb. 16. To submit comments, go to www.dol.gov/esa/whd/fmlacomments.htm.

molly.selvin@latimes.com

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