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Published: Sunday, 4/17/2005

Worries surround changes to family act

BY KAREN MACPHERSON
BLADE WASHINGTON BUREAU

WASHINGTON - In the six years that her young daughter battled cancer, Patti Phillips used the Family and Medical Leave Act to take chunks of time from work for doctor's appointments, hospital procedures, and just to be at home when her child was sickest.

By the time that her daughter died at the age of 18 earlier this year, Ms. Phillips' family had racked up "astronomical" health bills. But the FMLA allowed Ms. Phillips to keep her job - and her health insurance - while still taking time to be with her daughter.

"It was a godsend," Ms. Phillips says of the FMLA, which allows workers to take up to 12 weeks of unpaid leave per year for the birth or adoption of a child, or for illness - their own, or that of a family member - while still keeping their jobs.

"It was a godsend right up until the end. We were all there with her when she died. She wasn't alone," adds Ms. Phillips, an inventory control specialist who lives with her husband and other two daughters outside Atlanta.

Now Ms. Phillips and others are concerned that business groups want to weaken key provisions of the FMLA by making it harder for millions of American workers to take time off for their own illness, or the illness of a family member.

Late last week, Ms. Phillips told her story during a press conference called to highlight the issue. At the news conference, leaders of a coalition of more than 200 state and national groups urged U.S. Labor Secretary Elaine Chao to resist efforts by business to "rollback" the protections provided by FMLA.

Business groups are hoping Ms. Chao will take the opportunity to make changes in the FLMA regulations such as tightening the definition of a "serious medical condition" and expanding the minimum time of "intermittent leave" employees can take.

The 200-plus groups - representing women, minorities, senior citizens, and labor - fear that changes sought by business groups would restrict the kinds of medical conditions covered by the law. They also are concerned that the changes would force employees to take "intermittent leave'' for such things as chemotherapy in larger chunks of time than they need to, which means they would use up their FLMA leave more quickly.

Such changes "would have a devastating impact on American families," says Debra Ness, president of the National Partnership for Women & Families. "They would make it harder for people to take advantage of the law and to use the protection of the law."

But business groups, including the U.S. Chamber of Commerce and the National Association of Manufacturers, say it's clear that some changes are needed in the regulations governing the law to help employers deal with workers who use the job-protected leave to cover their chronic tardiness or absenteeism.

Particularly problematic are what business groups consider the overly vague definition of a 'serious medical condition" covered by the law, as well as a provision involving "intermittent leave," which can be just 10 minutes in some instances, business officials said.

"We've now got 10 years of experience with these regulations," says Michael Eastman, director of labor law policy for the U.S. Chamber of Commerce. "There are a few parts of them that have made it very difficult for employers to combat the minority of employees - but a significant minority - who are abusing the law." Because of a 2002 U.S. Supreme Court decision, the labor department must make a change in one part of FLMA dealing with the notice employers must give workers about how they implement the law in their workplace.

It's unclear, however, when the labor department will release its proposal for dealing with the Supreme Court decision, and whether it will also deal with other issues.

"No final decisions have been made," says Victoria Lipnic, assistant U.S. labor secretary for employment standards.

But Ms. Lipnic did note that the issues of re-defining a "serious medical condition" and the problems associated with tracking short bursts of intermittent leave were raised during labor department talks with the various groups concerned about changes in FLMA.

The bottom line, Ms. Lipnic says, is that the labor department "is charged with making sure the law works in the best way possible for everyone, especially the people who are supposed to benefit from it. That is our goal."

The law covers businesses with 50 or more employees, and covers about 60 percent of the U.S. work force, according to labor department statistics.

More than 50 million Americans have taken job-protected leave under FMLA since 1993, according to a 2000 labor department survey, the most recent statistics available.

The majority of those people - 52 percent - used the leave because of their own serious illness, while 31 percent used it to care for a seriously-ill family member. The remaining percentage used the leave to care for a new child.

Of those who used the leave for illness, half were off work for 10 days or less, according to the labor department survey. More women than men have used FLMA - 58 percent to 42 percent.

Business groups are hoping Ms. Chao will take the opportunity to make other changes in the FLMA regulations like tightening the definition of a "serious medical condition" and expanding the minimum time of "intermittent leave" employees can take.

Federal agencies like the labor department have the legal authority to make changes in regulations implementing a law, but only Congress has the authority to actually change the law.

"From my experience, these things are significant problems," says Phyllis Hartman, president of PGHR Consulting, a human-resources consulting group based in the Pittsburgh suburb of McCandless, Pa.

"It's not a bad law. It really does protect people from losing their jobs if they have something really bad happy. But the intent was to cover serious or catastrophic situations. Unfortunately, because the regulations are so non-specific, it's gotten to the point where somebody has a bad cold and they are using this law," Ms. Hartman says.

But Jay Fathi, the chief of the department of family medicine at Swedish Medical Center in Seattle, believes that the changes business groups want "would exclude nearly one in two workers who currently use the Family and Medical Leave Act to deal with serious health conditions.

"If these changes go through, you will see more people who have to choose between taking care of their health and saving their jobs," Mr. Fathi says.

Contact Karen MacPherson at: kmacpherson@nationalpress.com or 202-662-7070.



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