On February 15, 2012, the DOL published a Notice of Proposed Rulemaking in the Federal Register to integrate the changes commanded by the amendment. On June 22, 2010, the DOL in an Administrator's Interpretation clarified the definition of son and daughter under the Family and Medical Leave Act to make sure that a worker who takes on the role of caring for a child receives parental rights to family leave regardless of the legal or biological connection. According to the rule no one who loves and nurtures a child everyday should be not be able to care for that child when he or she falls ill. No one who steps in to parent a child when that child's biological parents are not present or incapacitated should be deprived of leave by an employer because he or she is not the legal guardian. No one who aims to raise a child should be denied the occasion to be present when that child is born simply because the state or an employer fails to distinguish his or her relationship with the biological parent (the Family and Medical Leave Act, n.d.).
Employees have responsibilities in regards to FMLA. Employees must provide thirty days advance notice of the need to take FMLA leave when the need is foreseeable. When thirty days notice is not possible, the employee must provide notice as soon as practicable and generally must comply with an employer's normal call-in procedures. Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform job functions; the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or circumstances supporting the need for military family leave. Employees also must inform the employer if the requested leave is for a reason for which FMLA leave was previously taken or certified. Employees also may be required to provide a certification and periodic recertification supporting the need for leave (Employee Rights and Responsibilities under the Family and Medical Leave Act, 2009).
Employers have certain responsibilities in the enforcement of FMLA. One of the first things that an employer must do is to determine an employee's eligibility. An eligible employee is one that has been employed with a company for at least 1,250 hours during a twelve month period. The burden is on the employer to show records that the employee has not worked the required amount of time. If the employer cannot show that proof the employee is eligible to use FMLA. An employer must give an employee written notice within two business days, if they are not eligible for FMLA. If the employer does not give the notice within the two business days, the employee is eligible to take the leave. An employer is not allowed to terminate FMLA if they fall below the 50 employee requirement. Once a leave has been granted, the employer cannot change the leave. An employer can ask an employee to provide medical documentation from a health care provider stating the reason that FMLA in needed. An employer can also ask for the employee to provide documentation that they are able to return to work. A covered employer is required to maintain the same group health insurance coverage for an employee that they had prior to the leave. Every employer covered by FMLA must post and keep posted the rules pertaining to FMLA. This posting must be in a place easily accessible by all employees (Vikesland, 2006).
FMLA makes it illegal for any employer to:
hinder, restrain, or deny the exercise of any right provided under FMLA
Discharge or discriminate against any worker for opposing any practice made illegal by FMLA or for involvement in any proceeding under or relating to FMLA.
A worker may file a complaint with the U.S. Department of Labor or may bring a private lawsuit against an employer if such takes place. FMLA does not affect any Federal or State law prohibiting discrimination, or take the place of any State or local law or collective bargaining agreement which provides greater family or medical leave rights (Employee Rights and Responsibilities under the Family and Medical Leave Act, 2009).
Both employers and employees benefit from workplaces that encourage health and safety and support an appropriate balance between work and family demands. Although various aspects of the FMLA and its implementing regulations operate well, others serve to undermine the spirit of the FMLA and are inconsistent with Congress' intent in enacting the law. Simply put, there have been serious unintended consequences that have become clearer with greater experience of how the regulations have worked in actual practice, in actual workplaces (Unintended Consequences of the FMLA and its Regulations, n.d.).
Many unintended consequences of the FMLA result from FMLA leave being used intermittently for chronic health conditions. Intermittent leave taken for chronic conditions almost always involves what have become known as unscheduled, unannounced, unforeseen, or unpredictable absences. The unintended consequences of these intermittent, unscheduled absences are significant. Employers, employees, customers, and the public are all adversely affected by unscheduled absences in numerous ways that were not contemplated when the Act and its implementing regulations were adopted. A better balance is now needed between the original, admirable purposes of the FMLA and the way the current regulations have operated in practice (Unintended Consequences of the FMLA and its Regulations, n.d.).
When an employee is absent because of unscheduled FMLA intermittent absences, the employer faces a productivity problem. The employer could hire a temporary employee, but frequently no qualified temporary employee is available on such short notice. The employer could allow the absent employee's work to remain undone, but this is impossible if the employee's work is part of an interdependent, time-sensitive, peak demand, or critical services operation. The employer could overstaff at all times in anticipation of unscheduled absences, but in an era of lean operations necessary to compete in a global marketplace, overstaffing is a luxury that most employers simply cannot afford (Unintended Consequences of the FMLA and its Regulations, n.d.).
When unscheduled absences occur, employers incur increased staffing costs through overstaffing; hiring temporary employees at a higher rate than the absent employee is paid while continuing to provide paid time off benefits to the absent employee, if such benefits have not been exhausted, and paying overtime to other employees. Employers also incur additional costs just to manage and administer FMLA leaves, which involve a great deal of paperwork and a considerable amount of time to evaluate and manage. Further, an employer's health insurance costs increase when FMLA leave is used because of higher utilization by employees for doctors' appointments, treatments, and completion of paperwork. These increased costs affect the employer's ability to provide increases in compensation and benefits. One very specific consequence of the FMLA has been employers' inability to provide true perfect attendance bonuses to employees most employers have eliminated perfect attendance awards and bonuses because of the FMLA (Unintended Consequences of the FMLA and its Regulations, n.d.).
Although some contend that the FMLA reduces turnover, this may be true only with respect to employees who regularly use intermittent FMLA leave year after year for chronic conditions. These employees can work a part-time schedule on a permanent basis with few if any consequences. They are unlikely to resign and seek employment with a different employer where they will not be eligible for FMLA leave until they satisfy the one-year waiting period. However, their co-workers may not have the same sense of loyalty if they are constantly required to work harder and longer at the expense of family and personal matters to cover for absent co-workers. An increasing number of co-workers have become demoralized by the toll others' unscheduled absences take on them. They do not understand why employers cannot discipline or fire employees with excessive absenteeism. These once loyal and dedicated employees who maintain acceptable attendance records are thus more likely to resign to find more favorable working conditions. In addition, employers now tend to impose stricter attendance rules during the first year of employment before an employee becomes eligible for FMLA leave. Under the current FMLA regulations, employers understandably believe that they need to manage attendance problems early on to avoid having an excessive absenteeism problem later when they cannot impose disciplinary action. As a result, there is an increase in turnover during the first year of employment (Unintended Consequences of the FMLA and its Regulations, n.d.).
Employment Law - Guide to Labor Law. (2012). Retrieved from http://www.hg.org/employ.html
Employee Rights and Responsibilities under the Family and Medical Leave Act. (2009).
Retrieved from http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf