I mentioned in my last entry that the United States is unique among nations in offering no guaranteed paid leave for workers, not even new mothers. Now it’s time to quickly explain that there is existing legislation that guarantees unpaid leave of up to 12 weeks to just over half of American workers (54% in 2005) to handle certain family and medical situations. The reason the other half is not covered is that the Act only applies to employers with 50 or more employees, so the smallest workplaces are excluded, which is where a sizeable chunk of people work. Two other provisions combine to further reduce participation: an employee must have worked at least 1,250 hours (60% of a full-time schedule) over the prior 12 months before (s)he can apply for this leave.
Twice before in the 14 years FMLA has been law (1996, 2001) there have been studies that have attempted to assess the impact of this legislation on employees and employers. These contained generally favorable data, and are cited often by way of comparison throughout this report. Then, last winter, the DOL issued what’s called a Request for Information (RFI), which invited anyone who cared to write a comment, submit research findings, tell a personal story, share an experience, or otherwise express an opinion about the law and its implementation. Over 15,000 comments were received, and this report summarizes the major themes. There is nothing scientific about this approach, no comprehensive study as was attempted twice before, no empirical data that unambiguously answers any of the questions asked in the RFI. As if to underscore this lack of conclusiveness, in Chapter 11 (which summarizes everything received by way of data, including that related to economic impact), the authors point out that “the Department did not receive a single submission that attempted a comprehensive and detailed cost-benefit analysis.” (Page 142).
So it should come as no surprise that there are no proposals for regulatory changes being put forward by the DOL as an outcome of this compilation of comments. In what solid foundation could any comprehensive legislative proposals be anchored, based on the contents? However, in my opinion, there is a wealth of material here about what is working, and best (and worst) practices abound. So, I believe we have what is needed to take collective action, not by expecting or waiting for more government legislative tweaking at this point, but through the application of common sense, business acumen and a grounding in workforce motivation and the principles of two-way communication – all of which are HR’s core competencies.
The report is simply descriptive of the enormous input received, a novel if unfocused project that makes for interesting reading, because there are lots of opinions and well-told stories from users of FMLA , their bosses, and sometimes their families. There is emotion and heated debate and some (mostly unsatisfactory) attempts to measure things like usage and outcomes and costs and savings. In case it’s not obvious by now, numbers and accurate estimations are not the strong suit of this compendium, so if you are craving the definitive answer to something — anything — you will be frustrated. However, if you enjoy human drama, you can almost hear people screaming at each other, while others fervently recite their tales in the background, hoping someone will listen. In short, this is the workplace as most of us know it – highly contradictory, polarized and confusing but familiar and engaging at the same time. If only there were a few Dilbert cartoons sprinkled throughout, we’d all feel very much at home.
So what gems of insight lurk inside these pages?
Overall, FMLA is working well as intended, which is to provide unpaid leave related to the addition of children to the family and for clearly serious health conditions.
A direct correlation exists between stability in the family and productivity in the workplace. The employee perspective summarized in Chapter 1 verifies that the primary objective of the Act, “to allow employees to balance their work and family life by taking reasonable unpaid leave for certain qualifying family and medical reasons” is being achieved.
Usage of FMLA among eligible employees is low, somewhere between 7%-10% (median) of those eligible to use it. Now, if you’re still awake, you’ll remember that only about half of the U.S. workforce is eligible, so we’re talking about 7%-10% of 54%. That’s still millions of people, but by no means a landslide. Reasons for low uptake? Medical emergencies don’t happen every day to every worker (thank goodness!); most workers can’t afford to take unpaid time off from work so resist doing so until things start to fall apart; many employees don’t know about or understand their rights and responsibilities under FMLA, and employers aren’t consistently excellent in communicating and coordinating same.
Usage of FMLA seems to be more highly concentrated among non-exempt (hourly, unsalaried) employees than their exempt co-workers, who in general have more degrees of freedom in taking intermittent time off. There is mention of notable differences between tracking and pay practices for time off between these two groups. If this is true, then it follows that many FMLA users happen to be the most vulnerable employees in multiple ways – less well-paid, more dependent on their benefits (if they have any) and the good will of their employer.
Approximately one quarter of FMLA users in 2005 took at least some of their leave not in one unbroken span, but intermittently. Doing so is permitted by the Act, but here is where the fur begins to fly, because a small (inconclusively estimated) proportion of FMLA users take unscheduled intermittent leave, largely due to the unpredictable nature of elder care or the chronic personal health conditions they are managing. Unscheduled is a disturbing concept in the workplace, because that which is unanticipated creates staffing and coverage problems, as well as suspicions about abuse of the well-intentioned provisions of the law.
Intermittent leave usage is likely to increase, because of the types of medical and family situations employees are describing in this report, such as the growing number of family members seriously wounded in Iraq and Afghanistan whose rehabilitation progresses in phases of intensity; long-term (but intermittent) cancer treatments; eldercare crises that flare up without forewarning hours or days across the country or the world; multiple sclerosis periodic episodes; the chronic asthma attacks suffered by a child; autism. Most of these afflictions are on the rise, and so is the aging of America.
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