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New law raises questions.

The Family Leave and Medical Act Worries Some Companies, Perplexes Others

SINCE THE FAMILY AND Medical Leave Act signed by President Clinton took effect Aug. 6, many business owners have wondered just how bad the worst-case result can be.

Will some employees abuse the law, taking leave on a false pretense to do higher-paying work that won't be reported to the Internal Revenue Service?

Will employees with ill relatives hurt their companies by stretching out their unpaid leave, taking a few days here and there?

Will every new mother in the company ask for several weeks of leave?

It's far too early to tell, but some business people suspect the law won't have much impact at all.

"I don't think you are going to find a larger number of employees who ask for 12 weeks of unpaid leave," says Carl Bass, district director of the U.S. Department of Labor's Wage and Hour Division. "It's just reality."

Many companies say the law is pointless for their employees.

"As far as our company is concerned, we've taken care of these people in the past," says Eugene Didion, president of Didion Mid South Co., a Fort Smith foundry with 180 workers.

Although Didion had tried to be accommodating, he says, the law pushes business too hard.

"In manufacturing, everybody works with the minimum number of employees because of the cost of doing business," he says. "So when somebody leaves, you have to replace them. And in manufacturing, these costs cannot be passed on."

Didion says the law could be especially painful if one of his most highly skilled employees takes leave.

"If we lost a metallurgist, we'd have to go to outside laboratories, which could delay our shipping times," he says. "It's hard enough to do business already."

Bruce Armstrong, plant manager of Armstrong Brothers Tool Co. in Fayetteville, says the high level of training required for workers such as his heat-treating specialists would make them virtually irreplaceable, even from outside sources.

Neither company has fielded a request for leave under the new law.

"A lot of these workers, I don't think they can afford to take the time off," says Armstrong, who notes that the company already had a policy of providing emergency leave. "We've never had anyone take leave for more than two weeks."

Next Step Called For

Across the country, union leaders have been generally pleased by the new law.

"I think it will be helpful, though it falls far short of what it needs to be," says J. Bill Becker, president of the AFL-CIO's Arkansas chapter. "Many other countries provide some wages while the worker is off."

Becker acknowledges that the legislation might invite abuse, but he notes, "There is room for abuse in any law."

To qualify for up to 12 weeks of unpaid leave per year under the Family and Medical Leave Act, a worker must have put in at least 1,250 hours for the same company during the last 12 months.

Also, at least 50 people must work for the company within 75 miles of the employee's workplace. That provision excludes people working at distant outposts such as a bureau writer for a newspaper or a local salesperson for a national firm. The exclusion is somewhat understandable because it's difficult to find temporary replacements in such a situation.

When they return from FMLA leave, most employees must be restored to equivalent positions with equivalent pay, benefits and other terms. If a company can establish that restoring a highly paid employee to his or her original position would cause irreparable financial injury, it may refuse to do so.

There are only three specific reasons permitted for taking leave under the act: to care for a newborn child or handle placement for adoption and foster care; to care for a spouse, child or parent who has a serious health condition; or to recover from a serious health condition, provided the illness renders an employee unable to do his job.

Many women's groups have come out as strong supporters of the act, primarily because new mothers are expected to be one of the most common beneficiaries of the law.

Janet Perkins, director of the Women's Project in Little Rock, says her office fielded many questions from angry new mothers before the law went into effect.

She says the worst problems occur when working women have complications with their pregnancies and they or their newborns are confined to the hospital for a long time. Some of these women return to work only to find themselves demoted or laterally promoted in their absence.

Like Becker, Perkins says the law represents a good start, but there is room for improvement.

The Small Print

For employees and employers, there are a few things that should be clarified about family leave.

For starters, the employee usually must provide 30 days' notice when the requested leave is foreseeable.

Employers may require medical certification for leave requests involving a serious health condition. Companies also have the right to request certification if the employee's health prevents him from returning to work.

If the problem is of a medical nature, the employee may scatter leave days throughout the year or work a reduced regular schedule. For non-medical reasons, companies must approve of such arrangements.

Under FMLA, employers are not allowed to tamper with a leave-taking worker's group health insurance. But if the worker doesn't return from the leave, companies may recover some insurance premium expenses.

There has been a lot of recent interest on the part of Arkansas businesses about the law and its implications.

"We've experienced a significant number of telephone calls, both from employees and employers," says Bass of the Labor Department.

Although the act is very unpopular in the business world, he doesn't expect many problems in convincing companies to conform.

"The thrust of this law is non-confrontational," Bass says. "If there is a problem, we'll try to pick up the telephone and inform them."

The Family and Medical Leave Act

THE ACT REQUIRES COVERED EMPLOYERS to provide up to 12 weeks of unpaid, job-protected leave to "eligible" employees for certain family and medical reasons. Employees are eligible if they have worked for a covered employer for at least one year, and for 1,250 hours over the previous 12 months, and if there are at least 50 employees within 75 miles.

Reasons for Taking Leave

If requested, unpaid leave must be granted for any of the following reasons:

* To care for the employee's child after birth, or placement for adoption or foster care;

* To care for the employee's spouse, son or daughter, or parent, who has serious health condition;

* For a serious health condition that makes the employee unable to perform the employee's job.

At the employee's or employer's option, certain kinds of paid leave may be substituted for unpaid leave.

Advance Notice and Medical Certification

The employee may be required to provide advance leave notice and medical certification. Taking of leave may be denied if requirements are not met.

* The employee ordinarily must provide 30 days advance notice when the leave is "foreseeable."

* An employer may require medical certification to support a request for leave because of a serious health condition, and may require second or third opinions (at the employer's expense) and a fitness for duty report to return to work.

Job Benefits and Protection

* For the duration of FMLA leave, the employer must maintain the employee's health coverage under any "group health plan."

* Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms.

* The use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee's leave.

Unlawful Acts by Employers

FMLA makes it unlawful for any employer to:

* Interfere with, restrain, or deny the exercise of any right provided under FMLA:

* Discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.


* The U.S. Department of Labor is authorized to investigate and resolve complaints of violations.

* An eligible employee may bring a civil action against an employer for violations.

FMLA does not affect any federal or state law prohibiting discrimination, or supersede any state or local law or collective bargaining agreement which provides greater family or medical leave rights.

Source: U.S. Department of Labor
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Article Details
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Title Annotation:includes related article; Family and Medical Leave Act of 1993
Author:Haman, John
Publication:Arkansas Business
Date:Aug 30, 1993
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