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Groups propose changing scope of FMLA

By Diane E. Lewis, Globe Staff, 2/9/03

Globe Staff Photo/John Tlumacki Glenna Doyle, with 4-month-old daughter Alexandra, recently returned to her job at TriNet after she took 12 weeks off under FMLA to have her baby.

Glenna Doyle, 34, of Plymouth, had no trouble getting 12 weeks off to care for her newborn child last September. Some of her friends weren't as lucky when their children were born.

''I have friends who had less time off when their babies were born, and they really resented going back to work,'' said Doyle, a regional manager for TriNet, a human resource provider.

Doyle's job guaranteed her three months leave under the Family and Medical Leave Act. Her friends' jobs did not.

Since the FMLA became law a decade ago, 35 million US workers at companies with 50 or more employees have exercised their right to take up to 12 weeks unpaid leave for family or medical matters such as caring for a newborn or sick relative, according to the US Labor Department.

Now, with supporters marking FMLA's 10th anniversary last week, change is in the air. Unions and other workplace advocates are backing a proposal that would make millions of additional workers eligible for leave by expanding the law to include employers with at least 25 workers. They are also pushing to tap state unemployment insurance or temporary disability insurance funds to make paid leave available to all employees, including the working poor.

The push for expansion comes at a time when the business community is demanding change, too. Concerned that workers are using the law to justify time off for minor ailments, US employers have asked the Bush administration to revise some of the FMLA's rules. They want the scope of the law narrowed so that it covers only serious illnesses. Right now, they say, even the common cold could be used as a ruse to skip work.

''We would like to see the statute clarified,'' said Sandra Reynolds, senior vice president of Associated Industries of Massachusetts, a trade group that represents more than 6,000 companies statewide. ''Most employers have no problem accepting time off for serious conditions. It is the less serious conditions - the cold or the flu - that cause confusion.''

Paul Angelico, president and chief operating officer of Twin Rivers Technologies, a maker of natural oil-based products headquartered in Quincy, agrees. Angelico, who offers sick time to the 220 workers he employs in Massachusetts and Ohio, maintains the law should not include minor ailments.

''The Family and Medical Leave Act is supposed to deal with long term, acute illnesses,'' said Angelico. ''That is what sick time is for. There are other mechanisms to deal with more common illnesses. That was not the intent of the FMLA.''

Over the past several weeks, the federal government has met with a variety of organizations, including business groups and unions, to gather input on the law. The Employee Standards Administration, which is reviewing the FMLA's regulations, is expected to notify the public this year of any revisions it plans to make.

''No one is suggesting a wholesale revision,'' said Victoria A. Lipsic, assistant secretary for the ESA. ''Whatever we do will probably be fairly narrowly tailored.''

Up until 1995, the law covered serious or emergency situations. Then, in 1996, the Labor Department ruled that more common conditions like migraines and stomachaches should be covered. Groups like the AFL-CIO, the 13 million-member union federation, embraced the change, noting that many low-wage employees work for companies that do not offer sick time and may be penalized for taking time off.

Today, the AFL-CIO is backing a bill in Congress to extend the law's provisions to include certain small companies, and to offer paid leave to eligible workers. Filed late last year by US Senator Chris Dodd, a Connecticut Democrat, the Family and Medical Leave Expansion Act would cover workers at companies with a minimum of 25 employees. The legislation calls for a $400 million pilot program to help states design ways to offer partial or fully paid leave of up to six weeks to eligible workers. The money would be dispensed through a state's temporary disability program or its unemployment compensation program.

With members of the business community seeking to restrict the FMLA's regulations and some states battling budget woes, the bill faces fierce opposition on Capitol Hill. ''It will be tough to move it,'' conceded Chris Owens, public policy director of the AFL-CIO. ''But getting the FMLA enacted in the first place took several years, and we have to start someplace.''

The initial law, written by Georgetown University professor Donna Lenhoff in 1984, guaranteed 18 weeks of leave every two years, with 26 weeks for employees with serious health conditions. President George H. Bush vetoed it twice between 1988-92, and the US Chamber of Commerce fought against it.

When the Society for Human Resource Management polled 416 HR professionals last month about their perceptions of the law, most said they struggle to understand its complex regulations. At the same time, 57 percent have offered job protected leave that went beyond what the law requires, and 63 percent have made exceptions for certain employees and granted leaves.

That's good news, says the National Partnership for Women & Families, which has been at the forefront of a nationwide family leave benefits campaign. The nonprofit organization chalked up a win last year in the ongoing tug-of-war over this issue when California enacted a paid leave bill. Starting July 2004, all employees in that state will be eligible for 55 to 60 percent of their regular pay, with a maximum payout of $728 per week, when they take a leave under the state law. Workers will contribute to the state's disability insurance fund. The average contribution will be just under $3 a month. Low-wage workers will contribute about $11 a year, according to the partnership.

Meanwhile, the National Federation of Independent Businesses is gearing up for a different fight. The NFIB, which represents more than 600,000 small businesses nationwide, opposes attempts to extend FMLA coverage to include some small companies and opposes tapping state unemployment insurance funds or disability insurance reserves to finance paid leaves.

''When we asked our members whether Congress should eliminate the small business exemption in the law, 82 percent of our members said no,'' noted Brad Close, manager of legislative affairs. ''Our members are opposed to a government mandate telling them how to run their leave policies. They need flexibility. They won't support a one-size-fits-all government policy on leave.''

Bill Walker, founder of Water Transportation Alternatives d/b/a Harbor Express, a water shuttle that ferries workers from Quincy to downtown Boston and Logan International Airport, says small employers face a huge burden when workers are out for extended periods. The company employs 40 people and is exempt from the FMLA's provisions, but offers employees a week of sick or personal time off.

''The downside of the 12 weeks unpaid leave is that, as a small company, we have to find someone to replace an individual for that amount of time,'' said Walker. ''We can work out maternity leave, but if someone gets sick with the flu and needs extra days off, well, that can be a pain.''

At TriNet, Glenna Doyle relied on the FMLA for maternity leave. She took the full three months and returned to work in December. To fund her leave, she applied five weeks vacation time and used money she and her husband had saved.

''It was our first child and I stupidly thought I would still be doing conference calls from home and meeting clients,'' said Doyle. ''I didn't have the time. My friends who went back early were crying all day long. They were so tired. But I had an advantage. I felt good when I came back. I was mentally prepared.''

Diane E. Lewis can be reached at dlewis@globe.com.

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