Businesses Want to Toughen the Family & Medical Leave Act

Say you have the flu. Say you have the flu really badly (not just the 24-hour variety), so badly that you end up going to your doctor for relief. Say it’s so bad that you end up missing more than three days of work. Should you be fired? Some business groups seem to think that you should. As noted in Monday’s entry, the Labor Department (DOL) is expected to propose changes to the Family and Medical Leave Act (FMLA) very soon. And if business groups have their way, your flu bout might no longer qualify as a “serious health condition,” and you might no longer have the ability to take unpaid FMLA leave without worrying about being fired. (Interestingly enough and surely no coincidence, the FMLA was enacted 10 years ago yesterday, and the DOL home page is today featuring a special “Know Your Rights” section on the FMLA. Labor Secretary Elaine Chao is quoted as saying “Perhaps now more than ever, when balancing work and home life is increasingly difficult, it is vitally important for employees and employers to understand their rights and obligations under the law.”) What’s causing all the outrage? In a 1996 ruling, the Labor Department ruled that the common cold, flu, earaches, headaches and other routine ailments all can qualify as “serious health conditions” — IF you are out for more than three days and are receiving treatment from a medical provider, such as antibiotics for the flu. Business groups whine that this interpretation has created a serious burden. (See Washington Post article.) One company official was anonymously quoted as saying “People use this as a way to get additional sick leave without any repercussions.” How about the repercussion of not getting paid if your sick leave has been exhausted, or as is the case in many workplaces, you don’t have any at all? Or having to pay to see a doctor for a cold or the flu just to verify that your condition is serious enough that you shouldn’t be at work infecting your coworkers? Should we fear that an employee’s “serious health condition” is going to be completely eradicated from the list of circumstances where workers are protected under the FMLA? We’ll see in March, when the proposed changes are expected to be released. (For more FMLA information, see the Workplace Fairness FMLA page.)