The FMLA Turns 20 Today; The DOL Celebrates With Curious Survey Results About The Use Of FMLA

by Franczek Radelet P.C.

Happy 20th Birthday, FMLA!  On February 5, 1993, President Bill Clinton signed the Family and Medical Leave Act, making it the very first piece of legislation he signed into law as President.    

Congrats on making it into your third decade, FMLA. Over the last two, however, you've given employers one hell of a ride! Don't get me wrong: all of my clients clearly see the value in providing leave to employees to recover from a very serious illness or injury or to take time off to bond with their newborn child.  Generally speaking, employers are wildly supportive of their employees' need to take leave for the manner in which the FMLA was intended.

And the FMLA has had a positive impact in my own life: a few years back, the FMLA ensured that my job was protected as I held my father's hand and provided him comfort in the last days before he died of cancer, and it also allowed me time to bond with my three beautiful children after they were born.   

At the time he signed the FMLA into law, President Clinton remarked that the FMLA would provide leave to employees "urgently needed at home to care for a newborn child or an ill family member."  What the President likely didn't appreciate, however, was the enormous administrative headaches the FMLA would exact on employers.  On a daily basis, many of my clients are socked with conundrums such as FMLA abuse and employee misrepresentations of the need for leave, how to track intermittent leave, and even how to recognize the need for FMLA leave.

In light of the many difficulties employers face administering the FMLA, you might imagine my surprise yesterday when I learned about the results of a recent Department of Labor FMLA survey, which makes a whopper of a conclusion:

The study shows that employers generally find it easy to comply with the law, and misuse of the FMLA by workers is rare. The vast majority of employers, 91 percent, report that complying with the FMLA has either no noticeable effect or a positive effect on business operations such as employee absenteeism, turnover and morale. Finally, 90 percent of workers return to their employer after FMLA leave, showing little risk to businesses that investment in a worker will be lost as a result of leave granted under the act.

Don't rub your eyes.  You're reading this passage correctly.  Yet, the findings don't stop there. Other notable -- and curious -- findings include:

  • 85% of employers report that complying with the FMLA is very easy, somewhat easy, or has no noticeable effect.
  • Employers reported the misuse of FMLA is rare. Fewer than 2% of covered work sites reported confirmed misuse of FMLA. Fewer than 3% of covered work sites reported suspicion of FMLA misuse.

Review the entire survey and supporting data here.

Geez...these results seemingly should be cast deep within Sir Thomas More's Utopia, as they present quite a saccharine view of the state of FMLA affairs.  Interestingly, the DOL's survey results are vastly different than the findings of a survey conducted by SHRM just a few years back regarding the FMLA.  In its 2007 survey, "FMLA and its Impact on Organizations," (pdf) SHRM uncovered an FMLA world far from Utopian.  Consider these quick stats from the SHRM survey and note how they differ from the DOL's report:

  • 63% of HR professionals found it "very difficult" or "somewhat difficult" to comply with the FMLA. (page 21)
  • 73% of HR professionals reported it "very difficult" or "somewhat difficult" in determining whether an intermittent medical condition should be protected by FMLA.  (page 21)
  • 39% of HR professionals stated that they have had to grant FMLA requests that they perceived to be illegitimate because of the DOL regulations and interpretations. (page 23)

These differences are stark.  Granted, the SHRM survey is a bit dated and precedes the 2009 FMLA regulatory changes, but would the results really be much different today?  For what it's worth, my experience in representing employers tracks a whole lot closer to SHRM's survey results.

How can these surveys peacefully co-exist?  More analysis on the DOL's survey results in the weeks to come, but for now, I'd encourage you to take part in fellow employment attorney Jon Hyman's (admittedly unscientific) one-question poll: "How difficult has it been for your company to comply with the FMLA?"  I'll be interested in your response and in Jon's poll results.

In the meantime, feel free to make a 20th birthday wish for the FMLA in the comment section below! (Let's keep it clean for the kids out there.)  

And get back to Utopia, you cynical employers!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

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