[Senate Hearing 109-229]
[From the U.S. Government Printing Office]

                                                        S. Hrg. 109-229
                             OF EXPERIENCE



                                 OF THE

                          LABOR, AND PENSIONS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION




                             JUNE 23, 2005


 Printed for the use of the Committee on Health, Education, Labor, and 

22-227                      WASHINGTON : 2006
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                   MICHAEL B. ENZI, Wyoming, Chairman
JUDD GREGG, New Hampshire            EDWARD M. KENNEDY, Massachusetts
BILL FRIST, Tennessee                CHRISTOPHER J. DODD, Connecticut
LAMAR ALEXANDER, Tennessee           TOM HARKIN, Iowa
RICHARD BURR, North Carolina         BARBARA A. MIKULSKI, Maryland
JOHNNY ISAKSON, Georgia              JAMES M. JEFFORDS (I), Vermont
MIKE DeWINE, Ohio                    JEFF BINGAMAN, New Mexico
JOHN ENSIGN, Nevada                  PATTY MURRAY, Washington
ORRIN G. HATCH, Utah                 JACK REED, Rhode Island
               Katherine Brunett McGuire, Staff Director
      J. Michael Myers, Minority Staff Director and Chief Counsel



                            C O N T E N T S



                        THURSDAY, JUNE  23, 2005

Enzi, Hon. Michael B., Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Bravo, Ellen, coordinator, Multi-state Working Families 
  Consortium, Milwaukee, WI......................................     4
    Prepared statement...........................................     5
Ness, Debra, president, National Partnership for Women and 
  Families, Washington DC........................................     7
    Prepared statement...........................................     8
Marsden, Jamie, director of human resources, City of Gillette, 
  WY, on behalf of the Society for Human Resource Management 
  (SHRM).........................................................    16
    Prepared statement...........................................    17
Prybutok, Robert, president, Polymer Technologies, Newark, DE....    19
    Prepared statement...........................................    20
Willman, Sue, attorney, Spencer Fane, Kansas City, MO............    22
    statements...................................................    23
Dohnalek, Laurie, nurse manager, Georgetown University Medical 
  Center, Washington, DC.........................................    44
    Prepared statement...........................................    45
Lancaster, Patrick, vice president, chief administrative officer 
  and secretary, American Axle & Manufacturing, Detroit, MI......    47
    Prepared statement...........................................    47
Alexander, Marie, ceo, Quova, Inc., Mountain View, CA............    53
Boyd, Sandra, vice president, human resources policy, National 
  Association of Manufacturers (NAM).............................    53
    Prepared statement...........................................    54
Payne, Jeffery, director, human resources, Palmetto Health, 
  Columbia, SC, on behalf of the American Society for Healthcare 
  Human Resource Administration..................................    56
    Prepared statement...........................................    57
Heymann, Jody, M.D., PH.D., director of policy, Harvard Center 
  for Society and Health, Cambridge, MA..........................    58
    Prepared statement...........................................    59
Mulvey, Janemarie, president and chief economist, Employment 
  Policy Foundation, Washington, DC..............................    62
Philips, Patti, working mother and FMLA beneficiary, Atlanta, GA.    63
    Prepared statement...........................................    64
Barbanel, Cheryl, M.D., MBA, MPH, FACOEM; president, American 
  College of Occupational and Environmental Medicine; chief of 
  occupational and environmental medicine, Boston Medical Center; 
  medical director, Occupational Health Center, Boston 
  University, Boston, MA.........................................    65
O'Flaherty, Susan, vice president and manager, Disability 
  Management Services of Bank One, Chicago, IL...................    66
    Prepared statement...........................................    66
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, opening statement...............................    83



                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Response to questions of Senator Enzi by Patrick Lancaster...    86
    Response to questions of Senator Enzi by Sandy Boyd..........    88
    Response to questions of Senator Kennedy by Jeff Payne.......    88
    Response to questions of Senator Enzi by Marie Alexander.....    91
    Response to questions of Senator Enzi by Susan O'Flaherty....    93
    Response to questions of Senator Kennedy by Cheryl Barbanel..    94
    Response to questions of Senator Kennedy by Laurie Dohnalek..    97
    Response to questions of Senator Kennedy by Janemarie Mulvey.    98
    Response to questions of Senator Kennedy by Robert Prybutok..    99
    Response to questions of Senator Kennedy by Jamie Marsden....   100
    American Organization of Nurse Executives....................   102

                             OF EXPERIENCE


                        THURSDAY, JUNE 23, 2005

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:12 a.m., in 
room SH-216, Hart Senate Office Building, Hon. Michael B. Enzi 
(chairman of the committee) presiding.
    Present: Senators Enzi, Isakson, and Clinton.

                   Opening Statement of Senator Enzi

    The Chairman. Good morning. I want to thank everyone, and 
this is a great crowd, for joining us for this roundtable 
discussion of the Family and Medical Leave Act.
    For all of us, time is a fixed and limited commodity, and 
setting priorities is a challenge that we have to deal with 
every day. For the parent of a seriously ill child, however, 
things are much different, because every moment spent caring 
for a son or daughter who is battling a serious illness is more 
precious than time spent in any other pursuit of life. As a 
parent and now as a grandparent, I know that if a child is 
seriously ill, the rest of the world stops and nothing is more 
important than providing care for that child and the attention 
that they need to get well.
    Those are the realities that Congress recognized a dozen 
years ago when it enacted the Family and Medical Leave Act. The 
act was intended to assist individuals and families that are 
faced with serious health issues or blessed with a new child by 
providing job-protected unpaid leave for up to 12 weeks for 
those who qualify. Now, in the vast majority of cases, the 
leave provided for under the act has worked well and the 
response of both employers and employees to the terms of the 
act has been positive.
    However, no system is perfect and, as with any piece of 
legislation, there have been some unforeseen and unintended 
issues with its implementation. In each instance, the few areas 
of concern have nothing to do with the statute itself but are 
confined to the regulations that have been promulgated to 
implement the statute. This should come as no surprise. In any 
legislative undertaking, the devil is in the implementing of 
regulations. Sometimes it is in the details. The regulations 
implementing the FMLA have been largely untouched since first 
authored following the passage of the act. Under such 
circumstances, it might make good sense to revisit those 
regulations in the light of intervening experience.
    We must also bear in mind that when Congress enacted the 
FMLA there were genuine concerns about weighing the needs of 
employees confronted by serious health issues, the burdens 
which their absence might place on their coworkers who must 
shoulder the additional work, and the legitimate need of 
employers for a steady and reliable work force. Those concerns 
are equally important today. The last 12 years have 
demonstrated that the implementation of FMLA has been largely 
successful but not entirely without problem. For example, in 
some instances, the unpredictability of leave often creates 
significant scheduling difficulties for employers, work 
distribution problems for coworkers, and service issues for 
    Now, the impact is greatest on the smallest businesses 
covered by the act. We need to acknowledge these facts and ask 
ourselves if we are accommodating these concerns in an 
appropriate way.
    Also, we need to be candid and to recognize that there will 
always be those few individuals who choose to take unfair 
advantage and abuse the rights provided for them in the 
statute. While the number of such individuals may appear small, 
we cannot discount their disproportionate impact on employee 
morale and productivity and, most importantly, on the rights of 
their coworkers. Again, we need to acknowledge this reality and 
ask if there are ways to safeguard against such abuse.
    Now, for millions of American workers, the FMLA is a 
valuable tool for helping them meet the demands of both work 
and family. The better any system is understood, the better it 
runs. Therefore, our efforts should focus on improving workers' 
and employers' understanding of how the FMLA is intended to 
operate. That requires clear definitions and plain, practical 
procedures. We need to be willing to revisit the original 
implementing regulations to ensure that this goal has been 
adequately met.
    The most practical way to achieve these ends is by 
reviewing the actual experiences of those affected by the 
statute over the last dozen years. That is where you come in. I 
am looking forward to today's roundtable discussion and the 
views of our panelists on how the Family and Medical Leave Act 
is performing in the real world. Your views on how it has 
helped and how its provisions should be clarified will provide 
us with the perspective necessary to make the Family and 
Medical Leave Act more responsive to the needs of employers and 
employees and their families.
    So I thank all of you for being here today. We have decided 
to use a roundtable format for this. It is something we kind of 
invented in this committee, rather than the formalized hearing 
format, in the hopes of encouraging greater participation. We 
would never be able to have this many people as witnesses at a 
hearing. And it also allows the participants to respond and 
elaborate on points raised by each other.
    Now, to those of you who are new to the format, let me 
briefly review a few of the administrative items. To allow all 
the invited participants as much time as possible for 
discussion, there won't be any additional opening statements 
once Senator Kennedy has given his opening statement--and we 
will interrupt for that when he gets here--or by the 
participants. Any statement that you want to submit will become 
a part of the record, but we want to move on to the questions. 
In our joint letter of invitation, we asked that you be 
prepared to discuss three questions concerning the Family and 
Medical Leave Act.
    Following the introduction of the participants, we will 
begin with the first question. If you wish to respond to the 
question or at any time enter into the discussion, please take 
your nameplate and stand it on end and somebody will record the 
order in which those are raised so that we can follow that kind 
of a seniority procedure. I will then recognize you for the 
purpose of speaking on the issue. I will do my best to 
recognize each of you in the order that the nameplate was 
turned up.
    Now, as we have a large number of participants, both 
Senator Kennedy and I would ask that you try to be concise with 
your comments and responses. To aid in this process, we use the 
time clocks in order that everybody has an opportunity to fully 
participate. It gives you a little bit of warning before it 
goes to red, but we would appreciate it if you would stay 
within the time lines. We are limited on overall time, and we 
would like to get to discussion on all three of the questions 
today that we have mutually agreed on.
    Now, I would like to thank the panelists for being with us 
today. I know that many of you have traveled great distances 
and taken time out of your busy schedules to be with us today, 
and we do appreciate your participation.
    I will introduce the participants.
    Our first panelist today is Jamie Marsden, who is the 
director of human resources for the City of Gillette, Wyoming, 
a place very near and dear to my heart. That is where I live. I 
used to be the mayor of that city.
    The next person is Ellen Bravo, who is the coordinator of 
the Multi-state Working Families Consortium in Milwaukee, 
    Dr. Cheryl Barbanel is the chief of occupational and 
environmental medicine and medical director of Boston 
University Occupational Health Center.
    Robert Prybutok is the owner of Polymer Technologies, a 
small business which employs about 90 people in Newark, 
    Debra Ness is the president of the National Partnership for 
Women and Families in Washington, DC.
    Sue Willman is an attorney with Spencer Fane in Kansas City 
and maintains a survey of litigation under FMLA.
    Laurie Dohnalek is a nurse manager specializing in 
inpatient oncology and blood and marrow transplant at 
Georgetown University Hospital here in Washington, DC.
    Sandra Boyd is the vice president of human resource policy 
for the National Association of Manufacturers.
    Marie Alexander is the CEO of Quova, Inc., of Mountain 
View, California.
    Patrick Lancaster is the vice president, chief 
administrative officer and secretary of American Axle & 
Manufacturing in Detroit, Michigan.
    Patti Philips is a working mother and FMLA beneficiary from 
Atlanta, Georgia.
    Dr. Janemarie Mulvey is the president and chief economist 
of the Employment Policy Foundation in Washington, DC., and 
author of the recent report, ``The Costs and Characteristics of 
Family and Medical Leave.''
    Susan O'Flaherty is the vice president and manager of 
Disability Management Services of Bank One, Chicago, Illinois.
    Dr. Jody Heymann is the director of policy for the Harvard 
Center for Society and Health in Cambridge, Massachusetts.
    And Jeff Payne is the director of human resources at 
Palmeto Health Hospitals in Columbia, South Carolina.
    So we certainly have a cross-section of the United States 
and quite a variety of occupations and expertise and 
viewpoints, both beneficiaries and employers.
    So let me turn to the first of our agreed-upon questions 
for the panelists. The first question reads as follows: What 
has been your own experience or that of your company with the 
Family and Medical Leave Act and its regulations?
    Always early in the morning people are kind of hesitant to 
turn their cards up.
    Ms. Bravo, do you want to start us off?


    Ms. Bravo. Thank you very much.
    My name is Ellen Bravo and I coordinate a multi-state 
consortium, eight State coalitions that are working to expand 
access to family and medical leave. Before, I was the director 
of 9to5. So for 22 years I ran either the local office or the 
national office. And, you know, in many ways a nonprofit is a 
small business. I want to say for the record, it is 
inconvenient when people get sick and even more so when they 
get pregnant when they are on the job. I wish we had a way of 
taking care of these things. I, for one, have tried to train my 
children, for example, for many years only to get sick when it 
was convenient, and I failed. And I imagine if any of you know 
how to solve that problem, I would be glad to hear from you.
    But what we found at 9to5 and as many other enterprises, I 
think, is that as inconvenient as it might have been to have 
someone out, it was much more inconvenient to lose them 
altogether or to have them at work when they were ailing or 
when they were preoccupied with a loved one. So we found it to 
be good business practice to have policies that were in fact 
much more generous than the Family and Medical Leave Act, 
including paid leave, for example.
    And I remember, the person who was the founder and 
executive director before me, Karen Nussbaum, three times 
adopted a child and three times had lengthy paid leaves. It was 
hard when she was gone, but it was also a development 
opportunity for people like me and for other staff, who got to 
do things we otherwise wouldn't have done and were in a better 
position to assume leadership when those positions opened up.
    I also want to share--I was on the Bipartisan Commission on 
Leave appointed by Congress and co-chaired by Senator Dodd, to 
examine the impact of the Family and Medical Leave Act on 
employers and employees. In the packet I brought from our 
consortium, I have a summary of our findings. And, you know, 
this was a very interesting body. Six people were on it because 
they worked really hard to pass this law, and six people were 
on it because they worked really hard to stop the law from 
passing. We didn't know if we would be able to sit in a room 
together, much less come up with a unanimous report. And guess 
what happened? During the time that we met, three of the 
opponents experienced profound problems related to family and 
medical leave that challenged their own opposition.
    One of them knew people who were in the bombing of the 
Federal Building in Oklahoma City and understood that family 
members of survivors needed time off to take care of them. A 
woman's daughter had a baby who was born with only one arm, and 
her daughter took every minute of those 3 months she got under 
Family and Medical Leave, and needed to in order to learn to 
care for that baby and to find a caregiver who could care for 
the baby. And this woman said, ``How can I say that because 
someone works in a smaller firm, they, too, wouldn't have 
needed this same time?'' A third commissioner who was an 
opponent had a godson who had a family tragedy. This man missed 
our commission meeting because he was at the hospital bedside. 
And he said, I know godchildren aren't covered under the law, 
but don't tell me that I wasn't going to be at that bedside.
    I wish I could tell you that we won them over on the need 
to expand. We couldn't get them to break ranks. But they did 
join us in a unanimous report applauding the benefits of Family 
and Medical Leave for employers and employees and calling on 
States to voluntarily experiment with forms of paid leave.
    So I urge you to consider that experience in understanding 
why this has been such a positive measure that we need now to 
expand, not gut.
    Thank you.
    [The prepared statement of Ms. Bravo follows:]

                   Prepared Statement of Ellen Bravo

    1. Experience with the FMLA: Thank you for the opportunity to 
testify before this committee. I coordinate a consortium of eight 
States working to make leave more affordable and more accessible. 
Before this, I was the executive director of 9to5, National Association 
of Working Women, which helped put the consortium together to raise 
funds for work being done at the grassroots level. After Linda Meric 
became executive director of 9to5, I continued to work with the 
    For 22 years I helped run first a local office and then the 
national office of 9to5. I know what small businesses mean about the 
difficulty of managing an operation when staff are absent. Work life is 
certainly easier if no one becomes sick or pregnant. Once our office 
had three women pregnant at the same time--that was a challenge. But we 
recognized that it would be much harder if we lost any of these staff 
altogether. 9to5's policies were always more generous than the FMLA, 
even though technically we were not covered by the law. We saw time off 
as a part of life, and also as a developmental opportunity for other 
    Before coming to 9to5, I worked at the phone company in Milwaukee. 
I was told when I was hired that I could not be sick for 5 years. That 
meant people came to work sick, stayed ill much longer than they would 
have and made other people ill. At 9to5, we sent people home if they 
came to work when they were sick. Again, this is inconvenient--but much 
more harmful to the individual and co-workers (and in the case of 
service workers, to their clients and customers) and to overall 
productivity if people are forced to work sick out of fear for their 
income or their job.
    I remember a colleague at 9to5 whose son had severe asthma. It 
wasn't easy when she was out, and her son was never able to warn her 
ahead of time when an attack was coming on. But his well-being and hers 
were important to us. By being flexible, we were able to keep a 
valuable employee and she was literally able to keep her son alive. I 
was reminded of this when I heard the story of Maria Vazquez, a 41-
year-old single mother and 9to5 member in Aurora, Colorado. The FMLA 
allows her to take off whenever her 11-year-old son, Vidal, has an 
attack caused by his chronic asthma. ``When he does get sick, I have to 
be up practically 24 hours,'' Vazquez said in a telephone interview, 
praising her employer, Kaiser Permanente, and her supervisor for 
understanding her situation.
    It may be easier to track leave if workers are forced to take only 
larger increments (although the law provides only for increments an 
employer already uses). But it's much more inconvenient to the rest of 
the workforce to force people to take half a day when they only need an 
hour for a doctor's appointment or radiation treatment. Not only would 
a change in this regulation penalize workers financially, but it would 
also make it more difficult for employers to get the work done.
    Everyone loses when a parent or other caregiver cannot stay with a 
seriously ill child or a child who is having a procedure, or take care 
of an elderly parent or spouse who's had a stroke or heart attack and 
needs a few days' care. A young woman, the daughter of a 9to5 leader in 
Pennsylvania, told us how children ``always know what's going on; we 
hear everything. Whenever I was sick, I would ask myself, `Should I 
tell my mom? Will we have groceries this week?''' Whenever she was 
able, she said, she simply dragged herself to school. Surely as a 
Nation we can find a way to ensure that children don't have to go to 
school sick or stay home alone in order for their parents to keep their 
    Ten years ago Congress appointed a bipartisan Commission on Leave 
to study the impact of the Family and Medical Leave Act. I had the 
privilege of serving on that body. We commissioned two studies, one on 
the impact on employers and a second on employees. And what we learned 
was that the FMLA had a positive impact on both employers and 
employees. I included a handout for you in the Consortium packet.
    The Commission on Leave included six people who were appointed 
precisely because they worked to oppose the bill and six who worked to 
pass it. Many of us thought we wouldn't be able to hold a conversation, 
much less reach agreement on a report. But an interesting thing 
happened. Some of the opponents experienced personal situations that 
showed the need for expanding FMLA. One opponent had a grandbaby born 
with only one arm. This woman knew that her daughter, the mother, 
needed every minute of her 3 months leave to learn to care for the baby 
and to find a provider who could learn that as well. Although she was 
specifically on the Commission to argue against expanding the bill to 
smaller businesses, this woman said she knew there could be employees 
in those companies who also needed that guarantee. Another opponent of 
FMLA missed a Commission meeting because of a tragedy involving his 
godson. ``I know godchildren aren't counted as family under the FMLA,'' 
he said, ``but there was no way I wasn't going to be there.'' We 
weren't able to persuade these Commission members to go along with 
recommendations to expand the FMLA, but their experiences and others we 
all heard in three hearings around the country helped win them to 
support unanimous adoption of a report acknowledging how well the FMLA 
worked, and encouraging voluntary action by States to experiment with 
forms of paid leave.
    The flexibility in the current regulations allows for examples like 
the following:
    This winter, the FMLA saved Kelly Edwards of Milwaukee. When her 
son broke his ankle, required surgery and needed her care for a few 
days, she was able to take family medical leave. Because of the law her 
son was able to get 4 days of parental attention, and start 
recuperating with an employed mother putting food on the table. If not 
for the FMLA, Kelly would have no legal protections to take this time 
for her child.
    Donna Skenadore, also from Milwaukee, has a diabetic father who had 
to have his leg amputated at the same time her mother had heart 
surgery. Donna and her sister were each able to take a week off and go 
to DePere, Wisconsin to care for them.
    Paul Galantowicz of West Branth, Michigan is grateful that he can 
be a responsible dad while he helps put food on the table. ``I want to 
be there for my 3 year old as she faces her battle against cerebral 
palsy,'' said Galantowicz. ``She has weekly visits with doctors, 
physical therapists, and every few months has to take an 8 hour trip to 
a university children's hospital. She is legally blind, can't walk, and 
the visits are needed to maintain her fragile medical status. Her mom 
does a lot, but as a responsible dad, I need to share the caregiving 
for Lauren. I was also able to take time off for her when she was a new 
baby. On Father's Day I'm thankful my job is protected under the Family 
Medical Leave Act (FMLA), so I can be a good father and a dedicated 
    But we need to remember that more than two in five workers are not 
covered. They include people like 9to5 member Virginia Beyer. Earlier 
this year, Ginny had a hernia problem that landed her in the emergency 
room on a Thursday night. She was still in the hospital Friday and 
called her supervisor, who immediately asked for a doctor's note. Ginny 
told 9to5, ``Even though the doctor faxed a note, my employer said I 
was `self-terminated' for having to miss less than a week recovering in 
the hospital.''
    It's time to move forward, not backward on the FMLA. I urge you NOT 
to recommend adoption of any regulations that would in fact gut the 
bill and result in millions of workers losing their much-needed right 
to flexibility to care for family members.
    2. Improvements in implementation: Every year thousands of workers 
call the 9to5 hotline. Many of them don't know their rights under FMLA. 
An employer might say they can't have time off because they want to use 
the leave to care for a parent. Often they receive absence points for 
using FMLA-protected time, in spite of fact that this is illegal. The 
DOL needs to expand education for employees on their rights under the 
law, and for employers on both their responsibilities and protections 
such as provisions regarding medical certification requests.
    3. What families need for work-life balance: The law needs to cover 
more people, for more reasons, and to be affordable. Some special 
interest lobbyists argue that smart employers will do the right thing 
on their own because it helps the bottom line. We agree. But laws 
aren't written for smart employers. They're written to create a floor 
to guarantee minimum levels of protection. We must remember that two-
thirds of all employers covered under the FMLA had to change one or 
more provisions of their policies in order to comply with the law. For 
many, that meant allowing men to take leave, or adoptive parents, or 
those who needed to care for a seriously ill child.
    Here are some other measures that workers need: The Healthy 
Families Act, which would guarantee a minimum number of paid sick days 
so that employees are not fired if they have a child with a routine 
illness. We need to recognize the irony with current welfare reform. We 
say low-income mothers must work to show that they're good parents, and 
then allow them to be fired because as a good parent they stay home 
with a child who's sick. Employers need flexibility, but certain kinds 
of flexibility--like firing a parent because they have a sick child 
should never be permitted. A certain number of hours of FMLA leave 
should be allowed for routine school and routine medical activities.
    As the Commission urged, States need to experiment with forms of 
paid leave. States that have Temporary Disability Insurance Funds 
should expand those to cover family leave. And others should create a 
new fund, paid for by modest amounts from employees, employers and the 
State or Federal Government.
    In the meantime, the Federal FMLA should follow the model of the 
Wisconsin bill, which allows employees to substitute sick days or other 
paid time off they have accrued for the unpaid leave allowed under the 
    Employees should be allowed to use their own sick time to care for 
a sick family member.
    We should also expand the use of unemployment insurance to cover 
those who lose a job because of a legitimate family care hardship.

    The Chairman. I would ask you to stay with the time. I know 
it is very short, but if you can expand on your remarks later, 
that will be accepted for the record. But at our present pace, 
only about half of you are going to get to talk. So if you can 
kind of summarize and give us the examples in writing, that 
would be very helpful.
    Ms. Ness?
    Ms. Ness. Can you hear me?
    The Chairman. Yes.


    Ms. Ness. I want to say thank you for holding this hearing 
because it is an opportunity for us to talk about what I think 
has been one of the most significant advances for working 
families in the last several decades. We are an organization 
that has been around for 30 years working on issues important 
to women and families, and we believe that this has been a 
really monumental step in moving us toward being a more family-
friendly Nation.
    We live at a time when three-quarters of families have both 
parents working. And we still are very badly out of sync with 
the realities that most working families face because we still 
primarily operate as a society on the assumption that there is 
still a full-time caregiver at home. We as a Nation care a 
great deal about family values and I think the Family and 
Medical Leave Act was a step toward putting those values into 
action in ways that really support families.
    Since its enactment, 50 million Americans have taken 
advantage of the Family and Medical Leave Act; 42 percent of 
those have been men, 58 percent of those have been women. And 
we know from some of the research that has been done that many 
of those individuals say that it led to quicker recoveries, it 
led to their ability to follow doctor's orders more carefully, 
it led to avoidance of parents being put into nursing homes. 
And we also know that 98 percent of employees who have taken 
advantage of Family and Medical Leave have returned to the same 
    I would like to reinforce what Ellen said. It has been an 
extraordinarily important law for employees, but I believe also 
a good law for employers as well. We have lots of evidence, 
including research from the Department of Labor, which show 
very high levels of support from employers who said that it 
had, if anything, a positive or neutral impact on profitability 
and growth and employee morale.
    So I thank you for this opportunity and say that it is an 
important step forward for our Nation that cares about 
    [The prepared statement of Ms. Ness follows:]

                    Prepared Statement of Debra Ness

    Good morning, Chairman Enzi, Senator Kennedy, and members of the 
committee. My name is Debra Ness. I am President of the National 
Partnership for Women & Families. The National Partnership is a non-
profit, non-partisan advocacy group dedicated to promoting fairness in 
the workplace, access to quality healthcare, and policies that help 
Americans balance work and family responsibilities.
    The National Partnership for Women & Families leads a broad, 
diverse coalition of over 200 groups dedicated to defending the FMLA on 
behalf of working Americans. The coalition reaches across a broad 
spectrum of concerned citizens, including religious, women's, seniors 
veterans, and disability groups.
    Our leadership of this coalition is a natural extension of our 
original role as drafter of the FMLA and leader of the coalition of 
more than 250 organizations advocating for its passage. We were very 
pleased when the act was signed into law in 1993 and the regulations 
were issued by the Department of Labor in 1995. We appreciate having 
been invited to speak with the committee here today on the FMLA and to 
address the important questions the committee has outlined for 

    Question 1: What has been your own experience, or that of your 
company, with the FMLA and its regulations?
    The FMLA is a major advance for working families. It provides 
unpaid, job-protected leave for up to 12 weeks a year to care for a 
newborn, newly adopted or foster child, to care for a seriously ill 
family member, or to recover from an employee's own serious illness. It 
also protects the health insurance of those on leave.
    Over 50 million men and women have taken leave under the act since 
its passage 12 years ago. This includes Americans from all walks of 
life. For example, 75 percent of leave takers earn less than $75,000 a 
year. A significant number of leave takers are men (42 percent) who use 
the FMLA for both their own serious illness (58 percent) and to care 
for seriously ill family members (42 percent).
    The FMLA is one of the most popular laws passed in recent decades. 
Over 80 percent of employees surveyed by the Department of Labor say 
that all workers should be able to take up to 12 weeks of leave a year 
for family and medical reasons--a finding duplicated in poll after 
poll, with uniformly high support across all demographic, political, 
and regional groups.
    Parents and children's advocates are particularly supportive of the 
FMLA because of its extremely positive outcomes for children. The 
medical leave protected under the act translates to important 
improvements in child health outcomes. Job-protection (and the 
attendant protection of health insurance) during pregnancy allows 
mothers covered by the act to get the prenatal care so important to a 
healthy birth. The family leave protected in the act allows parents to 
nurture and bond with newborns in their first year of life--the most 
critical time in a child's development. Job-protection during family 
leave also allows parents to care for seriously ill children, care that 
research shows promotes more rapid recovery. Children's hospital stays, 
for example, are shortened by one-third when parents are present during 
their care, according to Harvard researcher Dr. Jody Heymann.
    Healthcare professionals and healthcare advocates are passionate 
advocates of the FMLA, because of its importance both to children's 
health and to the health of adults and the general public. The FMLA is 
the only source of job-protected leave under Federal law for the many 
American workers who fall seriously ill each year or for those who need 
time off to care for seriously ill family members. Dr. Jay Fathi, Chief 
of the Department of Family Medicine at Swedish Medical Center in 
Seattle, Washington, captured these sentiments when he stated, at a 
recent press briefing:

        ``The FMLA has been critical to the health of many of my 
        patients and to the health of Americans more generally. It's 
        because of the law that people--or more specifically those 
        covered under the act, and particularly my lower-income 
        patients--don't have to risk putting their jobs in jeopardy to 
        come see me and get treatment. Moreover, people who lose their 
        jobs through illness generally lose their health insurance 
        along with their employment. People without health insurance 
        generally get worse healthcare, and worse healthcare means 
        worse health.''

    The FMLA is broadly supported by the medical profession. Health 
organizations, such as the American Academy of Pediatrics, were key 
players in the passage of the act and continue to be deeply invested in 
its maintenance.
    Those concerned with healthcare costs also recognize the critical 
role that the FMLA plays in cost containment. Threat of job loss is a 
powerful disincentive to seeking healthcare. By ensuring job 
protection, the act allows people to seek the treatment they need, when 
they need it.
    The FMLA has also been accepted and welcomed by employers. Data 
from the most recent national research on the FMLA, conducted by the 
Department of Labor, show that the vast majority of U.S. employers 
report that complying with the FMLA has a positive/neutral effect on 
productivity (83 percent), profitability (90 percent), growth (90 
percent), and employee morale (90 percent). The act benefits employers 
in numerous ways, most notably the savings derived from retention of 
trained employees, from productive workers on the job, and from a 
positive work environment.

    Questions 2 & 3. Are there ways in which the implementation of the 
act might be improved? Given the importance of maintaining a work/life 
balance for all working Americans, what do you believe are the most 
reasonable options to achieve the desired balance?
    Before I address the National Partnership's suggested improvements 
to the FMLA and options to achieve work/life balance, I would like to 
take a moment to address why regulatory changes proposed by some 
business groups would not improve implementation, but would in fact 
undermine the act.

Intermittent Leave

    One proposed regulatory change would force employees to take unpaid 
leave in half-day increments. This would seriously undermine 
protections in the act badly needed by working families. Currently, the 
regulations allow employees to take intermittent leave when medically 
necessary in the smallest increment that an employer already uses to 
track employee time. Making employees use intermittent leave in half-
day increments would force employees to take more unpaid time off than 
they need to. As a result, employees who use intermittent leave because 
they require frequent, short treatments would use up their allotment of 
FMLA more quickly. A working woman needing prenatal care is a good 
example of the negative impact such a change would have. An estimated 
14 prenatal care visits are necessary for a healthy pregnancy. These 
visits often take less than an hour. If women are forced to take a 
half-day leave for each visit, they will run through their FMLA leave 
faster, depriving them of crucial time to bond when the baby is born. 
People who need treatments like the following would also face similar 
consequences: radiation dialysis, steroid or chemo infusions for 
patients with multiple sclerosis, and cardiac rehabilitation after a 
heart attack.
    Furthermore, the proposed change to intermittent leave would also 
hurt the large numbers of working Americans who rely on every paycheck 
just to make ends meet. To force these employees to take unneeded, 
unpaid leave would threaten their families' already-fragile economic 
stability. Faced with this untenable choice, many employees would 
deprive themselves and their loved ones of much needed healthcare.

Serious Health Condition

    Another proposed regulatory change would limit the definition of a 
serious health condition. Current regulations define a serious illness, 
in part, as a condition that requires more than 3 consecutive days of 
treatment and recovery. Historically, some business groups have 
proposed changing the definition of serious health condition to exclude 
illnesses that require less than 10 days for treatment and recovery. 
Narrowing the definition will exclude numerous serious conditions. For 
example, an employee with acute appendicitis may not be covered. This 
employee, with medical treatment, can be back at work in less than 10 
days. Untreated, acute appendicitis is life threatening. Of the 50 
million Americans who have taken job-protected leave under the FMLA, 
half have taken leave for serious illness, whether their own or a 
family member's, for 10 days or less. Workers with chronic and serious 
health problems such as asthma and diabetes would also be prevented 
from taking FMLA leave for their brief but incapacitating episodes. 
Other examples of illnesses that would be excluded are pneumonia, 
certain kinds of heart attacks, some gynecologic surgeries that can be 
done laparoscopically such as removal of ovarian cysts, day surgeries 
such as hernia repairs, some breast reconstruction surgeries after a 
mastectomy and carotid artery cauterization for patients that are at 
risk for strokes. Furthermore, the length of leave for surgeries and 
recovery will continue to shorten with advances in health technology. 
We urge the Department of Labor to maintain the current definition of a 
serious health condition which provides job protection for millions of 
Americans when they need it most.

Serious Health Condition and Intermittent Leave Regulations Work Well

    More education would address many of the concerns raised about 
intermittent leave and serious health condition. Many leave-taking 
difficulties stem not from the regulations, but rather from the lack of 
education regarding employer and employee rights and responsibilities. 
The FMLA regulations as written provide robust employer safeguards to 
ensure that leave is taken appropriately. Under the regulations, 
employees must comply with notification requirements and medical 
certification requirements. They also must explain reasons for required 
leave and failure to do so gives the employer the power to deny leave. 
Furthermore, employers may require up to three medical certificates by 
doctors. The employer may also request that the original certification 
include the likely duration and frequency of episodes of illness. 
Employees needing intermittent FMLA leave or leave on a reduced leave 
schedule must attempt to schedule their leave so as not to disrupt the 
employer's operations. These protections and others are designed to 
balance employer management needs and employee family and medical 

                     Needed Regulatory Improvements

    Regulatory improvements should be made to protect employees 
attempting to exercise their FMLA rights. Below are three proposals for 
regulatory improvements.
    We urge the Department of Labor to issue a new regulation that 
maintains the notice requirement at issue in Ragsdale v. Wolverine 
Worldwide Inc., but adds a new penalty provision, protecting employees 
who can show that they would have used this leave in a different manner 
if given appropriate notice about the company policy. In Ragsdale, the 
Supreme Court invalidated a penalty provision in the regulations that 
required employers to grant employees additional FMLA leave if they did 
not notify employees that they were using FMLA leave. (Section 
825.700(a)). In the wake of Ragsdale, employers still have an 
obligation to notify employees that their leave is being treated as 
FMLA leave, but there is no incentive for employers to comply with this 
requirement, since the penalty provision has been invalidated. Without 
a penalty provision, employees' right to employer notification that 
their leave is FMLA-qualifying is hollow.
    We urge the Department of Labor to issue regulations that would 
minimize employee penalties when there is no harm to the employer. 
Currently, employees who do not give 30 days advance notice when taking 
foreseeable FMLA leave can have their leave delayed 30 days from the 
date they gave their employer notice of leave. (Section 825.302(a)). 
Employees are often unaware of this obligation. We recommend that the 
regulations provide that an employee who does not give 30 days of 
advance notice for foreseeable FMLA leave not be penalized unless his 
or her failure actually harms the employer.
    Finally, we urge the Department of Labor to issue regulations that 
lift the current burden placed on employees when a healthcare 
professional is negligent. Under the regulations, an employer may 
require an employee to get a medical certification to his or her 
doctor. If the employee's doctor fails to submit the medical 
certification, there is nothing in the regulations that protects the 
employee. The doctor's negligence should not endanger the employee's 
job. We recommend that employees not be penalized when they can show 
that they in good faith visited a doctor and requested a medical 
certification be submitted to the employer within the allotted time.

Additional Improvements to the FMLA

    We speak passionately about building a Nation that values families, 
and the FMLA is a monumental step toward this goal. But it is only a 
first step. Millions of Americans do not have access to the act's 
protections, and millions more cannot afford to take advantage of the 
protections it affords. We strongly advise expanding the FMLA to make 
it more affordable and accessible to all working families. We also 
strongly advise a bold new public education campaign to increase 
employers' and employees' awareness of their rights and 
responsibilities under the law.
    We urge Congress to expand the FMLA to cover the nearly 40 percent 
of American workers as yet unprotected by the act. In over 75 percent 
of U.S. families, both parents work. When their roles as workers and 
parents conflict, uncovered employees find themselves forced to choose 
between the jobs they need and the family they love. Rather than leave 
sick babies or dying parents untended, many workers are forced to 
forfeit their jobs--and with it, their health insurance. This double 
blow to a family's economic security is often a family's undoing.
    The decision, in 1993, to leave unprotected those working for 
employers of less than 50 employees was due in large part to claims 
made by some stakeholders that the law would drastically harm employers 
and the economy. We now have 12 years of experience with the law, and 
these concerns have not been validated. Today, there is near universal 
agreement, even among those who originally opposed the FMLA, that the 
act has been enormously beneficial to the 60 percent of the workforce 
protected by it and has made good sense to the businesses that employ 
them. We strongly recommend extending the act's protections to all 
working Americans. Doing so would be a win-win for American employers 
and American families.
    We strongly recommend that Congress pass legislation to provide 
those taking FMLA leave with income during their leave. Seventy-eight 
percent of those who need but do not take family and medical leave do 
not take it because they can not afford to, according to the Department 
of Labor. Three hundred thousand bankruptcies a year are caused by lack 
of paid medical leave, according to research by Harvard professor 
Elizabeth Warren. Twenty-five percent of all poverty spells begin with 
the birth of a child, according to The David and Lucile Packard 
    The urgent need to fill this gap in the law is widely reflected in 
poll after poll: 89 percent of parents of young children and 84 percent 
of all adults support expanding disability or unemployment insurance as 
a vehicle for paid family leave, according to research by Zero to 
Three. State polls have shown that large majorities of residents 
respond affirmatively when asked if they are willing to pay the costs 
of such programs through regular payroll contributions or other means.
    A number of States have passed laws to establish popular, low-cost 
programs to assure working families income while on leave. For example, 
5 States have laws establishing programs of temporary disability 
insurance for medical leave. These programs have been in place for 
decades. More recently, California passed a law establishing a State-
administered insurance program to provide income for employees during 
family leave. Employees receive 55 percent of their wages for up to 6 
weeks when taking leave to bond with a new baby or care for a seriously 
ill family member. Economists estimate the average cost of this policy 
is $2.20 per employee per month. State laws establishing temporary 
disability insurance and family leave insurance serve as successful 
models on which national legislation can be based.
    We also strongly recommend that the Department of Labor 
significantly increase efforts to educate the public about the FMLA. 
Sixty-two percent of employees at covered establishments do not know if 
the FMLA applies to them, according to the DOL. This is not because 
eligibility is difficult for stakeholders to determine--the vast 
majority of employers, for example, find it ``easy'' to determine 
whether employees are eligible. It is because we have failed to 
adequately educate employees about their eligibility under the law. It 
is not enough to have a policy in a CEO's desk drawer. Real education 
needs to happen and involve managers, supervisors and employees. And 
lack of education is not all on the employees' side. Education is 
needed to help employers better understand the robust employer 
safeguards that exist in the current regulations.

New Policies to Advance Work/Life Balance

    We urge Congress to pass the Health-Families Act, new legislation 
that addresses the need for employees to have paid leave for minor 
illness and preventive care. While the FMLA has provided millions of 
American workers protections to deal with serious illnesses, it does 
not cover routine illnesses like the flu and preventative medical care 
such as mammograms and colonoscopies. Nearly 50 percent of full-time, 
private sector employees do not have a single paid sick day and 75 
percent of low-wage workers lack this basic employment benefit. Only 33 
percent of workers have paid sick days that may be used for doctors' 
appointments and fewer have plans that allow leave to care for sick 
children. Working families are often forced to choose between a 
paycheck and caring for sick children, ailing parents, or for 
    The Healthy Families Act would establish a minimum standard of 7 
paid sick days per year. The benefits provided under the act would help 
66 million Americans. The act would also generate cost savings: saved 
wages that employers would pay to unproductive workers who go to work 
sick, reduced turnover, reduced spread of contagion to other employees, 
increased employee morale, and informal care. The Healthy Families Act 
benefits everyone: children and family members, employers, taxpayers, 
and consumers who are less likely to catch the flu or other diseases 
from restaurant, hotels, and other public spaces. The act is estimated 
to result in a net savings to our national economy of $8.2 billion per 
year, according to the Institute for Women's Policy Research. I urge 
the committee to seriously address the need for paid sick days and hold 
hearings on the Healthy Families Act.


    The Family and Medical Leave Act is a major advance for working 
families. Not only should we not roll back its protection, we should 
build on its success. The FMLA is a great first step, but our workplace 
policies are still badly out of sync with the realities of many of 
today's working families. We need to stop simply talking about family 
values and start valuing families.

         National Partnership For Women & Families,
                                    Washington, D.C. 20009,
                                                    April 12, 2005.
Elaine L. Chao,
U.S. Department of Labor,
200 Constitution Avenue NW,
Washington, D.C. 20210.

    Dear Secretary Chao: We are writing on behalf of millions of 
American families who have benefited from the Family and Medical Leave 
Act (FMLA) and the millions more who will benefit in the years to come. 
We urge you not to make any regulatory changes that would undercut the 
critical protections it provides to working women and men and their 
    More than 50 million Americans have taken job-protected leave to 
bond with a new baby, care for a seriously ill family member, or 
recuperate from their own serious illness since the enactment of the 
FMLA just 12 years ago. As a result, fewer people have had to choose 
between a job and family when medical crises strike or babies are born.
    We are very concerned that, despite the law's great success, 
important provisions of the FMLA are threatened. Opponents of the FMLA 
are calling for changes to the law that would rollback many of the 
protections that it provides to America's workers by changing the 
definition of a serious health condition and restricting the use of 
intermittent leave.
    One suggestion is to change the definition of a serious health 
condition to deny job protected, unpaid leave to workers unless their 
condition, or the condition of the person they are caring for, lasts 10 
or more days. Current regulations define a serious health condition, in 
part, as a condition that requires more than 3 consecutive days of 
treatment and recovery.
    Altering the definition will leave out numerous serious conditions. 
For example, an employee with acute appendicitis may not be covered. 
This employee, with medical treatment, can be back at work in less than 
10 days. Untreated, acute appendicitis is life threatening. Of the 50 
million Americans who have taken job-protected leave under the FMLA, 
half have taken leave for serious illness, whether their own or a 
family member's, for 10 days or less. We are concerned that altering 
the definition of a serious health condition will remove much needed 
job protection for millions of Americans when they need it most.
    FMLA opponents are also pushing for changes that could force 
employees to take leave for no less than a half-day at a time. This 
change would force many employees to take unnecessary leave without 
pay. Employees who require frequent, short treatments, such as 
radiation treatment for cancer or pre-natal visits, will be forced to 
exhaust their FMLA leave sooner than necessary, leaving them without 
adequate job-protection for medically necessary treatments and recovery 
time they require. The current law aims to minimize employers' 
administrative burdens by offering leave in the smallest units that 
employers already use to track employee leave while ensuring that 
workers are not absent from work any longer than necessary.
    Research shows that the FMLA has been beneficial to business. 
United States Department of Labor employer surveys, released in 2000, 
found that 9 in 10 covered employers report that the FMLA has a 
positive or neutral effect on productivity and growth. Another 
nationally representative employer survey found that 3 in 4 private-
sector employers say the FMLA's benefits outweigh or offset its costs. 
The Department of Labor survey also found that, for the vast majority 
of employers, intermittent leave has no impact on productivity (81 
percent) or profitability (94 percent).
    As a Nation, we can do a better job of helping our Nation's 
families be responsible employees and parents. Working Americans need 
the Department of Labor and Congress to provide more solutions as they 
struggle to balance work and family. We hope that we can work with you 
to develop programs that help meet the needs of our Nation's families 
and ensure the security of the Family and Medical Leave Act. Thank you.
    National Partnership for Women & Families; 9to5 Colorado; 9to5, 
National Association of Working Women; 9to5 Poverty Network 
Initiative--Wisconsin; AARP; ACORN; ADA-OHIO (The Americans with 
Disabilities Act); AFL-CIO; Aging Resources of Central Iowa; All 
Families Deserve a Chance (AFDC) Coalition--Colorado; Alpha-1 
Association; Alpha-1 Foundation; American Association of People with 
Disabilities (AAPD); American Association of University Women (AAUW); 
American Association on Mental Retardation; American Autoimmune Related 
Diseases Association; American Civil Liberties Union (ACLU); American 
Civil Liberties Union Women's Rights Project; American Federation of 
Government Employees (AFGE); American Federation of State, County, and 
Municipal Employees (AFSCME); American Federation of Teachers (AFT); 
American Society on Aging (ASA); Asian Law Caucus, CA; Association for 
Women in Science (AWIS-WVU), West Virginia University Student Chapter; 
Association of Flight Attendants--CWA; Association of University 
Centers on Disabilities (AUCD); Atlanta/North Georgia Labor Council, 
GA; Atlanta 9to5, GA; Atlanta Women's Foundation, GA; Bay Area & 
Western Paralyzed Veterans of America; Black Women's Health Imperative; 
Business and Professional Women (BPW), USA; California Commission on 
the Status of Women; California Labor Federation, AFL-CIO; California 
Nurses Association (CNA); Cambridge Commission for Persons with 
Disabilities, MA; Cambridge Commission on the Status of Women, MA; 
Candlelighters Childhood Cancer Foundation; Candlelighters Childhood 
Cancer Foundation of the Inland Empire, Inc., CA; Candlelighters of 
Southwest Florida; Center for Community Change (CCC); Center for 
Independent Living of Jasper, Alabama; Center for Law and Social Policy 
(CLASP); Center for Women and Work, Rutgers University, NJ; Center on 
Women and Public Policy, Humphrey Institute of Public Affairs, 
University of Minnesota; Cerebral Palsy of Colorado; Chester County 
Commission for Women, PA; Child Care Law Center; Children's Advocacy 
Institute, Center for Public Interest Law; Children's Alliance of New 
Hampshire; City of Boston Women's Commission, MA; City of Fairfax 
Commission for Women, VA; Coalition on Human Needs; Colorado AFL-CIO; 
Colorado Center on Law and Policy; Colorado Fiscal Policy Institute; 
Colorado Progressive Coalition; Colorado Women's Agenda; Communications 
Workers of America (CWA); Communications Workers of America (CWA), 
Local 1034, NJ; Cook County Department of Human Rights, Ethics and 
Women's Issues, IL; Cumberland County Commission for Women, PA; 
Communications Workers of America (CWA), Local 3204, GA; Dads and 
Daughters; DC Employment Justice Center; Delaware Commission for Women; 
Denver Area Labor Federation, CO; Early Childhood Policy Research; 
Epilepsy Foundation; Equal Rights Advocates (ERA), CA; Equality State 
Policy Center, WY; Faith Voices for the Common Good, CA; Families USA; 
Families of Spinal Muscular Atrophy (SMA); Family Caregiver Alliance 
(FCA)/National Center on Caregiving; Family Caregiver Coalition of New 
England; Family Voices New Jersey; Gateway/Midwest Paralyzed Veterans 
of America; Georgia AFL-CIO; Greater Boston Legal Services, MA; Great 
Plains Chapter Paralyzed Veterans of America; Illinois Maternal and 
Child Health Coalition; International Association of Machinists 
Aerospace Workers (IAMAW); International Federation of Professional and 
Technical Engineers (IFPTE); International Union of Bricklayers and 
Allied Craftworkers; Iowa Commission on the Status of Women; Iowa 
Annual Conference of The United Methodist Church; Labor Project for 
Working Families, CA; Leadership Conference on Civil Rights (LCCR); 
Legal Aid Society-Employment Law Center (LAS-ELC), CA; Legal Momentum; 
LIUNA (Laborers' International Union of North America); LIUNA Women's 
Caucus; Lutheran Office of Governmental Ministry in New Jersey; Maine 
Civil Liberties Union; Maine Women's Lobby; Massachusetts AFL-CIO; 
Massachusetts Paid Leave Coalition; Paralyzed Veterans of America, 
Michigan Chapter; MOTHERS (Mothers Ought To Have Equal Rights); 
Montgomery County Commission for Women, MD; Ms. Foundation for Women; 
NARAL Pro-Choice America; NARAL Pro-Choice Arizona; NARAL Pro-Choice 
Colorado; NARAL Pro-Choice Massachusetts; NARAL Pro-Choice New 
Hampshire; NARAL Pro-Choice New York; NARAL Pro-Choice North Carolina; 
NARAL Pro-Choice Ohio; NARAL Pro-Choice South Dakota; NARAL Pro-Choice 
Wisconsin; National Association for the Education of Young Children 
(NAEYC); National Association of Commissions for Women (NACW); National 
Association of Social Workers (NASW); National Association of Social 
Workers (NASW), Colorado Chapter; National Association of Social 
Workers (NASW), Iowa Chapter; National Association of Social Workers 
(NASW), Metro Chapter; National Association of Social Workers (NASW), 
Oregon Chapter; National Coalition for Cancer Survivorship; National 
Council of Churches (NCCCUSA); National Council of Jewish Women (NCJW); 
National Council of La Raza (NCLR); National Council of Women's 
Organizations (NCWO); National Council on Independent Living; National 
Education Association (NEA); National Employment Law Project (NELP); 
National Employment Lawyers Association (NELA); National Family 
Caregivers Association (NFCA); National Mental Health Association; 
National Multiple Sclerosis Society; National Organization for Women 
(NOW); California National Organization for Women (NOW); Connecticut 
National Organization for Women (NOW); National Psoriasis Foundation; 
National Respite Coalition; National Women's Health Network; National 
Women's Law Center (NWLC); NETWORK: A National Catholic Social Justice 
Lobby; New Hampshire AFL-CIO; New Hampshire Commission on the Status of 
Women; New Jersey Citizen Action; New Jersey Time To Care Coalition; 
New Mexico Association of Community Action Agencies; New Mexico 
Commission on the Status of Women; New Mexico Conference of Churches; 
New Mexico Voices for Children; North Carolina Justice & Community 
Development Center; Paralyzed Veterans of America, North Central 
Chapter, SD; Older Women's League (OWL); Padres Unidos--Colorado; PA 
Family Economic Self-Sufficiency Project, PathWaysPA; Paper, Allied-
Industrial, Chemical and Energy Workers International Union (PACE); 
Paralyzed Veterans of America; Parent to Parent of Colorado; Parents' 
Action for Children; ParentsWork, IL; Pax Christi; Pennsylvania Council 
of the Blind (PCB); Philadelphia Citizens for Children and Youth, PA; 
Planned Parenthood Federation of America (PPFA); Program on WorkLife 
Law, American University Washington College of Law, DC; PROJECT! 
OUTREACH: Early Breast Care, Education, Screening & Education, Inc.; 
Project WISE, CO; Protestants for the Common Good; Public Justice 
Center, MD; RESULTS; Seattle Women's Commission, WA; Service Employees 
International Union (SEIU); South Dakota Coalition of Citizens with 
Disabilities; South Plains Post Polio Support Network, TX; Statewide 
California Coalition for Battered Women; Statewide Parent Advocacy 
Network (SPAN), NJ; Take Back Your Time Day; Take Care Net; The Arc of 
the United States; UAW Massachusetts CAP Counsel; United American 
Nurses; Unitarian Universalist Association of Congregations; United 
Auto Workers (UAW); United Cerebral Palsy; United Electrical, Radio and 
Machine Workers of America (UE); United Food and Commercial Workers 
(UFCW), Women's Network; United Steelworkers of America (USWA); 
USAction; Utility Workers Union of America; Vaughan Chapter Paralyzed 
Veterans of America, IL; Veteran Feminists of America; Virginia 
Interfaith Center for Public Policy; Voices for Children of Greater 
Cleveland, OH; Voices for America's Children; Wider Opportunities for 
Women (WOW); Wisconsin Council on Children and Families; Wisconsin 
Paralyzed Veterans of America; Women Employed, IL; Women's Employment 
Rights Clinic, Golden Gate University School of Law, CA; Women's Law 
Center of Maryland; Women's Law Project, PA; Women's Lobby of Colorado; 
Women's Policy Group, GA; Women's Way, PA; Women Work! The National 
Network for Women's Employment; WomenVotePA; YWCA Greater Portland, ME; 

     Assessing the Family and Medical Leave Act: An Analysis of an 
              Employment Policy Foundation Paper on Costs
                 institute for women's policy research
                             june 29, 2005

    Policy Foundation paper, The Cost and Characteristics of Family and 
Medical Leave,\1\ purports to evaluate the costs to employers of the 
Family and Medical Leave Act (FMLA). The paper provides none of the 
standard information about the methods used in conducting the survey, 
such as the sample size or characteristics of the employers who 
participated in the survey. Personal communication with the author 
revealed that the sample was quite small (110 employers) and that the 
survey participants were not randomly selected. Despite this, the paper 
generalizes its findings as if the study represents all U.S. employers.
    \1\ Janemarie Mulvey, The Cost and Characteristics of Family and 
Medical Leave (Washington, D.C.: Employment Policy Foundation, 2005).
    In this analysis, we highlight a number of weaknesses in the EPF 
paper that limit its usefulness in the debate over use of the FMLA.
    1. The paper does not represent U.S. employers.
     The survey used to generate the cost assessment did not 
use a randomly selected group of employers, so responses do not reflect 
the average experience of all U.S. employers.
     The survey's sample was very small--110 employers. Firms 
answering the survey employ only 0.36 percent of all U.S. workers (less 
than half of one percent).
     The survey responses may depend on the size and location 
of employers, but no information about employers' characteristics is 
provided in the paper.
    2. Employers' responses may be very subjective.
    It is unclear whether the information used in the paper was based 
on data maintained in employers' records or was simply one employee's 
impression, since the paper does not reveal who at each firm responded 
to the survey and what resources they had available to do so.
    3. Employers with complaints are probably more likely to answer the 
survey than satisfied employers.
     Individuals with a specific interest in a survey topic are 
more likely than others to participate in surveys.\2\
    \2\ Robert M. Groves, Stanley Presser, and Sarah Dipko, ``The Role 
of Topic Interest in Survey Participation Decisions,'' Public Opinion 
Quarterly 68, no. 1: 2-31 (2005).
    Employers who are managing FMLA leaves effectively are probably 
less likely to take the time to say that things are going well than are 
those with concerns over the FMLA. Thus, the survey responses likely 
over-estimate the difficulty all U.S. employers perceive in 
implementing the FMLA.
    4. The paper incorrectly assumes that workers who take FMLA leave 
would not miss work if they had no FMLA leave.
     Workers with serious health conditions cannot go to work 
whether they have FMLA leave or not.
     Many workers whose children are very ill or in the 
hospital will be with their children, even if they do not have FMLA 
     The difference the FMLA makes is ensuring that workers can 
go back to work once a health crisis is over.
     Workers are unlikely to miss work unnecessarily since the 
FMLA does not require that workers be paid during their leaves, and 
many workers go without pay during their FMLA leave.
    5. The paper ignores savings to employers who do not pay wages to 
workers on unpaid FMLA leave.
     The paper reports both lost productivity (when workers are 
not on the job) and net replacement costs, but does not appear to 
account for employers' savings related to not paying workers who are on 
unpaid leave.
    6. Other research finds much lower replacement costs for workers on 
FMLA leave.
     In an independent survey, the U.S. Government 
Accountability Office found that employers' savings from not paying 
salaries and benefits to workers on leave are greater than the cost of 
the few replacement workers hired.\3\
    \3\ U.S. General Accounting Office [now the U.S. Government 
Accountability Office], Estimated Costs of H.R. 925, The Family and 
Medical leave Act of 1987 (Washington, D.C.: U.S. General Accounting 
Office, 1987).
    7. The paper's conclusions about trends in use of FMLA leave are 
derived from faulty analysis.
     Comparisons of EPF's survey findings to those of a 2000 
Department of Labor survey of FMLA use \4\ are inappropriate--not only 
because the EPF survey is not representative of all employers (which 
the Department of Labor survey is), but also because questions were 
worded differently in the two surveys.
    \4\ David Cantor, Jane Waldfogel, Jeffrey Kerwin, Mareena McKinley 
Wright, Kerry Levin, John Rauch, Tracey Hagerty and Martha Stapleton 
Kudela, Balancing the Needs of Families and Employers: Family and 
Medical Leave Surveys (Washington, D.C.: U.S. Department of Labor, 2001 
accessed January 20, 2001).

    The Chairman. Thank you.
    Ms. Marsden?

                       MANAGEMENT (SHRM)

    Ms. Marsden. I would like to state that as a HR director 
for a small entity, I have engaged in the opportunity to help 
people with this family and medical leave for about 10 years. 
And also to reiterate that it is a good benefit and for the 
most part it does work very well. But there are instances that 
we have to deal with in HR that are abuses of it, and it is a 
problem for those individuals who are using it well. In 
particular, I would like to see some additional language to 
help clarify what is a serious health condition and also to 
better clarify regarding intermittent leave.
    I have had instances where individuals have asked for as 
little as 15 minutes a day, some that have had a lot of 
disruption to the work unit they have been with because of the 
morale issues surrounding that. And also, the serious health 
condition, I have had issues of whether or not the individual 
was actually in need of the leave.
    So I would like to see some further clarification. I do 
believe that it works well. I do believe we need to have a 
means by which our people can take care of problems that come 
along with health conditions. We provide sick leave and, for 
the most part, most of our employees do go out on paid family 
and medical leave.
    Thank you.
    [The prepared statement of Ms. Marsden follows:]

                  Prepared Statement of Jamie Marsden

    Chairman Enzi, ranking member Kennedy, and members of the Senate 
Health, Education, Labor, and Pensions Committee my name is Jamie 
Marsden and I am the Director of Human Resources for the City of 
Gillette, Wyoming. I appeared at the FMLA Roundtable on behalf of the 
Society for Human Resource Management (SHRM) and I am pleased to submit 
the following statement for the record.
    Human resource professionals are committed to the proper 
application of the Family and Medical Leave Act (FMLA). Since the 
enactment of the law in 1993 and the issuance of the act's implementing 
regulations, as well as Wage and Hour Opinion letters, a variety of 
concerns and questions have been raised surrounding the correct 
application of the act in the workplace. This is evidenced not only by 
research from the U.S. Department of Labor (DOL), but also by outside 
groups like SHRM, of which I am a member.
    SHRM conducted surveys in 2000 and 2003 on the FMLA and I believe 
that the findings from the survey efforts substantiate my personal 
experiences in administering this act and are also representative of 
the human resource profession's experience with the law overall. The 
research found that while organizations strongly support the FMLA and 
the benefit that it provides to so many employees nationwide, Wage and 
Hour interpretations have created numerous compliance difficulties as 
well as misuse of the act's leave provisions. For example, the 2000 
survey identified the following as the most difficult areas of FMLA 
compliance for human resource professionals:
     Managing intermittent use of leave;
     Communicating with physicians and care providers;
     Determining whether an intermittent serious health 
condition should be protected by the FMLA;
     Managing leave of less than 1 day.
    The 2003 findings were consistent with those found in the 2000 
research. In addition, the 2003 survey confirmed that half of human 
resource professionals had to grant, based on DOL regulations/
interpretations, FMLA requests that they believe were not legitimate. 
In addition, 34 percent of human resource professionals stated 
employees complained because of other workers' questionable use of FMLA 
leave. SHRM conducted supplemental research in 2005, which yielded 
similar results.
    The DOL has the responsibility to bring clarification to the FMLA 
so that issues related to the interpretations, related notification and 
record keeping requirements regarding serious health condition, 
management of intermittent leave, and communication with healthcare 
providers and physicians is clearly understood by both employees and 
employers alike.
    Mr. Chairman, I would like to provide the committee with my own 
practical examples that underscore the research findings that I've 
cited in this statement.

Experiences in Administering FMLA

    1. Definition of ``Serious Health Condition'': When the FMLA was 
passed in 1993, the definition of serious health condition appeared to 
cover circumstances such as cancer, serious heart conditions, advanced 
diabetes, dialysis, etc. I have received medical certifications from 
doctors indicating that employees need FMLA leave for a variety of 
reasons, including symptoms of stress. Human resource professionals 
must rely upon information provided by doctors, even if the condition 
cited is questionable. Therefore, we err on the side of caution and 
grant virtually all FMLA leave requests accompanied with a medical 
certification in order to ensure that an employee's rights under the 
act are not violated.
    I would like the DOL to clarify the definition of ``serious health 
condition'' so that it reflects conditions that are truly serious in 
nature. In 1993, Congress, in the legislative language, provided 
direction for serious conditions. Yet today, the common cold, broken 
big toes, or even in-grown toenails are protected by the FMLA according 
to the DOL regulations and Wage and Hour Opinion Letters. Clarity must 
be restored to this definition so that employees who experience truly 
serious conditions have access to ``job protected'' leave and are able 
to freely exercise their rights under the FMLA.
    2. Intermittent Leave: Current law requires that employers track 
time in the smallest time increments that their systems allow. This 
requirement is cumbersome. I believe that intermittent leave should be 
tracked in no less than 1 hour increments or in a manner that is 
consistent with how employers track and keep time for other leave 
programs. In addition, employees may utilize intermittent leave for 
chronic conditions or to seek treatments to recover from a serious 
health condition.
    There are a small percentage of employees who misuse certified 
``job protected leave.'' I find this most often occurs when an employee 
is certified for a chronic condition. The result of inappropriate leave 
use, perceived or real, may be devastating to employee morale, 
particularly if notice has not been provided to the employer that the 
employee will be absent. The Employment Policy Foundation reports that 
more than 50 percent of leave-takers provide notice either the day 
leave begins or after the leave has commenced. This puts co-workers in 
a position of working unscheduled overtime.
    3. DOL Certification Form: It has been my experience that the DOL 
certification form that doctors complete for their patients is too 
lengthy and in need of revision. I've noticed that doctors rarely 
complete the form, as we all know, the writing is frequently difficult 
to read. As it is, doctors are burdened by the amount of paperwork that 
they are required to complete in the normal course of their practice, 
and the FMLA certification form adds to this burden. Doctors now charge 
their patients out-of-pocket fees for completing the DOL certification 
    4. Return to Work Certifications: We have concerns about how 
healthcare providers handle return to work certifications. Employees 
too often have undue influence in prolonging certified leave regardless 
of whether or not additional recovery time is necessary.
    Example: I had an employee on FMLA leave who exhausted all of his/
her PTO (employer sponsored paid time off) with our organization. The 
employee visited the doctor who certified that additional FMLA leave 
was needed. As a result, our organization notified the employee that 
further FMLA leave would be un-paid. The employee's spouse called the 
doctor to request a change in the certification of health so that the 
employee could return to duty. The doctor changed the form and the 
employee was back to work a few days later.
    5. FMLA and the Americans with Disabilities Act: Because many 
employees who request FLMA leave also qualify under the Americans with 
Disabilities Act (ADA) for ``reasonable accommodations,'' the 
interaction between FMLA and the ADA continues to be a subject of 
confusion. Often, accommodations under the ADA for a reduced work 
schedule or light duty are often better solutions for employees than 
intermittent leave.

Suggestions for Improving the Regulations

    1. Limit intermittent leave time increments to 1 full hour or the 
increment of time that employers use to track other leave programs in 
the workplace. This would allow employees to take FMLA leave in smaller 
time increments, yet eases administration and tracking issues for 
employers as all leave would be in blocks of full hours.
    2. Provide a clear definition of what qualifies as a serious health 
condition. Elective cosmetic surgery and employees feeling ``stressed 
out'' (unless diagnosis is made by a certified mental health 
specialist) should not qualify as job-protected FMLA leave. However, 
serious heart conditions, cancer, advanced arthritis, advanced 
diabetes, kidney failure, etc. should be conditions that were once 
envisioned by Congress to rise to that level of protection.
    3. Revise the ``certification of health'' form so that the form is 
clear for healthcare providers, employers, and employees to complete, 
and clearly understand and complete and submit electronically.
    4. Allow employers to take appropriate disciplinary actions (absent 
dismissal) with employees in question if employers uncover abuse of 
medical leave.


    Chairman Enzi, thank you again for the opportunity to submit this 
statement for the record. The regulations governing the FMLA have been 
in place for 10 years and it is important for the DOL to conduct a 
thorough review of the rules and issue clarifications to the medical 
leave regulations. The majority of Roundtable participants agreed that 
clarifications are necessary for not only employers but also to ensure 
that employees have a clear understanding of their rights.
    The practical experience I've provided along with survey data from 
SHRM clearly indicates that while human resource professionals and 
employers support the FMLA, they have experienced difficulty in 
administering and implementing these regulations.
    Chairman Enzi, I look forward to working with your office on this 
important issue, and if there is any further information that I can 
provide to you, please do not hesitate to contact me at your 
    The Society for Human Resource Management (SHRM) is the world's 
largest association devoted to human resource management. Representing 
more than 200,000 individual members, the Society's mission is to serve 
the needs of HR professionals by providing the most essential and 
comprehensive resources available. As an influential voice, the 
Society's mission is also to advance the human resource profession to 
ensure that HR is recognized as an essential partner in developing and 
executing organizational strategy. Founded in 1948, SHRM currently has 
more than 550 affiliated chapters and members in more than 100 
countries. Visit SHRM Online at www.shrm.org.

    The Chairman. Thank you.
    Mr. Prybutok?

                           NEWARK, DE

    Mr. Prybutok. Thank you. I am Robert Prybutok, president of 
Polymer Technologies and principal owner. We have been in 
business since 1989. We manufacture acoustical and thermal 
composites and sell these composites to a broad range of 
markets, a broad range of original equipment manufacturers in 
the United States.
    We have been in business since 1989, and from the time that 
we started business, we offered a full complement of benefits--
100 percent paid healthcare, short-term and long-term 
disability, 5 sick days, personal days, vacation, 401(k). We 
work in a competitive environment and, as most businesses do, 
particularly manufacturers, we fight rising costs that we can't 
pass on to our customers.
    We were impacted by FMLA in 1996, and it has been easier to 
administer in the office environment where employees are more 
autonomous and can be more flexible in making time up than in 
the manufacturing environment. Typically in a manufacturing 
environment you will have anywhere from two to half a dozen 
employees working in a cell. And in today's lean manufacturing 
implementation, it is very difficult to overstaff. So when 
employees are out, it causes inefficiency and an economic 
    Some of the problems we face with FMLA: one has to do with 
the--let's say the employee doesn't return to work. A typical 
example is an employee who is out on maternity leave and 
covered, from a salary perspective, under our short-term 
disability, elected to extend it, and then indicated that they 
had no intention of returning to work. The coworkers had to 
take on that burden. Additionally we had to search for and hire 
a replacement, which extended that problem. But there was also 
exposure for Polymer Technologies, financial exposure.
    We self-insure. By self-insuring, we are able to offer our 
employees excellent healthcare benefits at a reasonable cost. 
However, our exposure is up to $20,000 per employee. So for 
that employee and other employees who abuse FMLA out of the 
work environment, we have a financial responsibility, 
potentially, if they are ill during FMLA leave. So the option 
that we have considered is to introduce a less comprehensive 
HMO-type program at similar cost, with less benefit to the 
employee. And we don't want to do that, and I think that would 
be a mistake. But unfortunately, we may be faced with that.
    Thank you.
    [The prepared statement of Mr. Prybutok follows:]

                 Prepared Statement of Robert Prybutok

    These comments specifically address three questions raised by the 

    Question 1. What has been your own experience, or that of your 
company, with the Family Medical Leave Act and it's regulations.
    Question 2. Are there ways in which the implementation of the act 
might be improved?
    Question 3. Given the importance of maintaining a work life balance 
for all working Americans, what do you believe are the most reasonable 
options to achieve the desired balance?
    Polymer Technologies Inc. is a manufacturing company located in 
Newark, Delaware. We have been in operation for 15 years. Currently we 
have 90 employees at our primary facility located in Newark, Delaware 
and 15 employees at a satellite facility in Northern New Jersey. 
Polymer manufactures and markets a broad range of acoustical and 
thermal composites sold to equipment manufacturers in the industrial, 
transportation, power generation, medical, recreational and aircraft 
    From the time Polymer began operations we provided our employees 
with 100 percent company paid healthcare benefits. The Delaware State 
Chamber sponsored healthcare program enabled us to afford this benefit. 
We soon followed by providing company paid short-and long-term 
disability insurance and a company sponsored 401K plan. Employees earn 
2 weeks vacation with 1 day added for each year of service. We allow 
employees 5 sick days and 2 personal days per year. By offering a full 
complement of benefits and being flexible in the administration of our 
policies to help employees balance family life with business 
obligations we have been able to avoid potential difficulties that FMLA 
presents to employers.
    In our production environment most processes require a minimum 
number of experienced operators. These work cells cannot operate 
effectively if they are short an experienced employee. We recognize the 
need to cross train in order to have flexibility in our work force in 
order to provide coverage due to vacations, sickness and other 
scheduled and unscheduled events which take an employee away from the 
manufacturing environment. The normal approach to determining 
additional staffing is typically conservative since labor costs drive 
overhead costs and potentially put manufacturers in an uncompetitive 
position. With competition from low labor markets this pressure for 
cost containment becomes even more acute.
    FMLA presents a danger to small manufacturers since it enables 
employees to take an extended leave while obligating the employer to 
maintain their position or provide an equivalent position. As employees 
take advantage of these laws the labor cost per unit of production time 
increases. Other costs are associated with the lack of efficiency in 
keeping a position open for the duration of the leave. Since the work 
must be adequately covered, the burden falls on fellow employees or 
expensive temporary workers. When the employee uses this time to search 
for another job or other endeavors that cause them to not return to 
work, an even more significant cost and performance impact falls on the 
    A potential problem with FMLA is that employees who are more 
financially independent or have more resources may be in a better 
position to implement FMLA to the fullest extent possible where as co-
workers with less resources will be much more judicious in utilizing 
FMLA because they need the income. This presents potential personnel 
issues within the organization since those workers who are impacted by 
having to handle the workload of the chronic missing employee will 
develop a negative attitude. Of course, under FMLA the company is 
powerless to manage this situation except by insuring that adequate 
``justification'' accompanies the employee's absence.
    From Polymer Technologies perspective FMLA has not been any more or 
less difficult than other Government employment laws or regulations to 
understand or administer. Understanding the law, as it is written, is 
extremely difficult however, we rely on well-written guides which 
explain FMLA in normal English, sighting examples and case law. This is 
most helpful however; there is still some confusion and lack of clear 
direction and definition in certain areas.
    Over the past 2 years Polymer Technologies has had 5 cases where 
FMLA was utilized. Most of these cases were pretty straightforward 
however in one case the employee did not return to work and had a 
negative impact on the company performance. In this situation the 
employee who did not return to work took FMLA upon the birth of their 
child. Their income was supplemented for the first 6 weeks through our 
short-term disability program. We continued to pay healthcare benefits 
and held their position open with the expectation of the employee 
returning to work. The employee did not return to work and we lost 
valuable time in searching and hiring a replacement.
    Polymer Technologies self-insures for our healthcare coverage 
thereby offering our employees excellent coverage in relationship to 
our total out of pocket costs. However, there is the potential of a 
$20,000 per employee stop loss which we are responsible for. An 
employee on FMLA who does not intend to return to work can potentially 
have an accident or other major healthcare issue during this leave 
period. By attempting to be pro active and responsive in offering our 
employees an excellent benefit we find ourselves exposed through this 
Government mandate. There is a compelling motivation to back off and 
provide a low cost HMO program that limits our financial liability. In 
addition we, like most small manufacturers, are concerned over 
Government mandates in areas of health and welfare which can remove our 
flexibility in administering personnel policies and adding additional 
cost burdens in an economic environment where increasing prices to 
cover increased costs is near impossible!
    One area where FMLA presents a difficulty is in the vague 
interpretation of a ``Serious Health Condition.'' In those areas where 
the definition of employment law or regulations is vague, qualitative 
or subject to interpretation too much resource is spent on an 
individual situation.
    Another area of concern is understanding the conflict between FMLA 
and other legislation such as ADA. An employee on FMLA may then acquire 
a disabeling injury or condition and remain out an extended period 
beyond FMLA. The companies liability is not clearly defined.
    An improvement in FMLA would be a more specific definition of where 
FMLA must be utilized and what constitutes a ``Serious Health 
Condition.'' The law should also be more specific regarding the 
employee's obligation where healthcare and other benefits are provided 
by the employer with the full intention of the employee returning to 
work. Should the employee not return to work they should clearly be 
responsible for re-imbursement of these costs. This would limit 
employees from abusing FMLA while not intending to return to work for 
personal reasons or because they are utilizing FMLA while searching 
alternate employment.
    In the United States we enjoy a free enterprise system structured 
such that entrepenurers have a much easier time starting businesses, 
having access to resources and capital and a higher probability of 
success than our world counterparts. Our industrial environment has 
become increasingly sophisticated and the success of our system has 
resulted in low unemployment and a growing economy, unlike our European 
partners. The competition for employees in industry is significant and 
companies today realize they must offer competitive benefits and a 
reasonably flexible administration of benefits including work schedules 
in order to hire and retain quality employees. Insuring affordable 
healthcare is available to small manufacturers is an important step 
towards allowing them a vehicle for providing a strong benefits package 
to their employees. This is a major requisite for fostering positive 
employer/employee relationships in small businesses. Because Polymer 
Technologies, Inc. has always provided comprehensive benefits to our 
employees and has been responsive to employee's personal needs', FMLA 
has not been a major burden.
    Employers and employees must both approach the issue of the balance 
between work and life from a responsible and responsive perspective. 
Most employers, like Polymer technologies are responsive to those 
employees who demonstrate a positive work ethic and positive 
motivation. When mandates remove employers' flexibility and 
consequently their ability to differentiate in administering benefits 
then policies and benefits will seek the least cost alternative.

    The Chairman. Thank you.
    Ms. Willman?


    Ms. Willman. As a lawyer, I represent only employers. It is 
important to know that. I have dealt with hundreds of employers 
on hundreds of FMLA issues since its enactment. Overall, I find 
employers to be very supportive of the act itself and genuinely 
interested in complying with it and honoring legitimate 
requests for FMLA leave. I have never had an employer tell me 
that they want to abolish the act, although they would like to 
see some enhancements and fine-tuning of the regulations.
    Over the last several years, the questions I get from 
employers about FMLA really fall into two categories. I get 
questions about the definition of ``serious health condition'' 
and how to interpret it and how to decide if a particular 
absence falls within that definition. And I get questions about 
how to stop abuse of FMLA intermittent leave. Those are the two 
main questions that come to my attention as a lawyer.
    I think it is important to focus on what is a problem under 
the FMLA regulations--not the act itself--and also to focus on 
what is not a problem. Under the FMLA there are two types of 
leaves. There is family leave and there is medical leave. I do 
not believe there are problems with the family leave portion of 
the FMLA or the regulations.
    Under the medical part of FMLA, there are actually three 
types of leaves. We have continuous leaves for temporary 
medical conditions, and I do not believe that continuous leaves 
of absence are a problem. That is the person who goes out for 
surgery and they come back to work; it is a short-term 
condition, you can plan for it, you can schedule it, they are 
legitimate, it is verifiable.
    Then there are, the second type of medical leave, the 
intermittent leave for temporary conditions. Again, I think 
there are some issues with those because of the definition of 
``serious health condition,'' but overall they are usually for 
planned or scheduled medical treatment and they are verifiable 
types of leaves. I don't believe there is a major problem 
    But the third type of medical leave, the intermittent leave 
for permanent conditions, or the chronic serious health 
condition, is where we are seeing abuses under the FMLA. And if 
there is one issue that needs to be addressed in addition to 
the definition of ``serious health condition,'' it is abuses of 
the intermittent leave provisions.
    [The statements of Ms. Willman follows:]

                  Position Statement of Sue K. Willman
                                                      July 8, 2005.
Hon. Michael Enzi,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.

Hon. Edward Kennedy,
Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.

Re: Position Statement on the Need for FMLA Regulatory Reform

    Dear Senator Enzi and Senator Kennedy: I want to thank both of you 
and the entire Senate Health, Education, Labor, and Pensions Committee 
for the opportunity to participate on June 23 as a witness at the 
committee's Roundtable on ``The Family and Medical Leave Act: A Dozen 
Years of Experience.'' It was an honor and privilege for me to share my 
perspective on the FMLA and its regulations with the committee at that 
    As indicated in my testimony, I am a strong advocate for FMLA 
regulatory reform. It is my belief that FMLA regulatory reform will 
help ensure that the act itself is properly respected in good faith by 
both employers and employees and that both groups have a better 
understanding of what their respective rights and obligations are. I am 
neither pro-employer nor pro-employee on FMLA regulatory reform issues. 
I am pro-fairness.
    FMLA regulatory reform provides the perfect opportunity for a bi-
partisan effort to promote the original intent and purposes of the act. 
I urge the committee, all Members of Congress, and the Administration 
to support FMLA regulatory reform. I firmly believe that the 
regulations can be revised by DOL in a manner that will strike a fairer 
balance between employer and employee rights and obligations, while at 
the same time respecting the entitlements granted by the act, reducing 
FMLA litigation, and preventing FMLA abuse.
    This position statement is submitted to you and the committee to 
supplement my testimony and as an official part of the committee's 
record. It includes my responses to the questions posed during and 
after the Roundtable by each of you.

A. Expertise on The FMLA and Its Regulations

    Spencer Fane law firm represents management exclusively on labor 
and employment matters. We represent clients of all sizes, in all 
industries and throughout the country. As a result, our 25+ labor and 
employment attorneys have dealt with hundreds of clients on hundreds of 
FMLA issues.
    I have been practicing labor and employment law for over 24 years. 
I have served as both in-house employment counsel as well as a private 
practitioner specializing in labor/employment law. Prior to becoming an 
attorney, I was employed as a human resources professional for 3 years. 
I am also a certified Senior Professional in Human Resources (SPHR).
    As an attorney, I specialize in what we refer to as ``preventative 
employment law'' issues. My practice focuses on assisting clients in 
complying with Federal, State, and local employment laws, preventing 
employment-related claims, and minimizing potential liability.
    I have considerable experience with and expertise on the FMLA and 
its regulations. Since the FMLA's inception, I have handled hundreds of 
FMLA matters. Over the last several years, requests from clients for 
assistance on FMLA issues have increased. I receive inquiries and 
requests for legal assistance on FMLA issues far more frequently than 
any other employment law issue. For the last couple of years, I have 
received requests from clients on FMLA issues almost every day. For 
more information regarding my FMLA expertise, I refer you to the 
summary attached as Exhibit ``A.''

B. What Needs To Be Reformed: The Act or The Regulations?

    As I mentioned during my testimony, I firmly believe that the FMLA 
regulations need to be reformed, not the act itself. FMLA compliance 
has been unnecessarily complicated by a set of regulations that are 
difficult for employers to understand and apply and that allow abuse by 
employees at the expense of the employees who do not abuse the FMLA's 
    Overall, I find employers to be very supportive of the act itself 
and its intent and spirit. I also find employers to be compassionate 
towards their employees and genuinely interested in complying with the 
act and honoring legitimate requests for FMLA leave. No employer has 
ever told me that it wishes to see the act itself repealed. However, 
most of the employers with whom I work or have spoken are very 
frustrated by the FMLA regulations and have indicated that FMLA 
regulatory reform is very much needed.
    I do not believe it makes any sense to consider expansion of the 
act itself (as advocated by employee-oriented organizations) when the 
current FMLA regulations are creating numerous compliance challenges 
and problems that need to be addressed. We need to fix the problems, 
not expand them.
    I also do not believe that FMLA regulatory reform should be delayed 
in order for DOL to commission comprehensive, methodologically 
rigorous, independent research on the FMLA to update DOL's 1995 and 
2000 studies, as some have suggested. Although I am not opposed to FMLA 
research per se, there is already sufficient research and evidence that 
the FMLA regulations need to be revised. As a practical matter, FMLA 
research should be conducted on an ongoing basis by DOL, and not just 
when it is conveniently needed by special interest groups as an excuse 
for delaying much needed regulatory reform. Any proposal for research 
at this time strikes me more as a stall tactic than as a reflection of 
any real need for the research.

C. Why is There a Need for FMLA Regulatory Reform?

    There are numerous reasons why FMLA regulatory reform is needed and 
needed now. I have summarized some of those reasons below (both legal 
and business reasons):
    1. Compliance with Ragsdale Decision. The U.S. Supreme Court, in 
the first FMLA case decided by it (Ragsdale v. Wolverine Worldwide, 
Inc., 122 S.Ct. 1155, decided March 19, 2002), has already invalidated 
at least one FMLA regulation (29 CFR 825.700(a)) as being contrary to 
the act and beyond the DOL's authority. To date, the DOL has not 
removed the invalidated regulation.
    2. Compliance with Ragsdale Principles on Categorical Penalties. In 
the Ragsdale case, the Supreme Court found the regulation in question 
to be a categorical penalty that is contrary to the act's remedial 
design. The Supreme Court specifically stated that ``The challenged 
regulation is invalid because it alters the FMLA's cause of action in a 
fundamental way: It relieves employees of the burden of proving any 
real impairment of their rights and resulting prejudice.'' Although the 
Supreme Court was called upon to consider only one particular FMLA 
regulation, the broad principles announced by the Court cast doubt on 
the validity of any FMLA regulation that includes a categorical 
penalty. Therefore, all categorical penalties in the regulations need 
to be removed.
    In addition to the specific regulation invalidated by the Supreme 
Court, there are at least 12 other FMLA regulations that clearly 
contain categorical penalties and many more that arguably contain 
categorical penalties. (See Exhibit ``B'' for a list of other 
regulations that contain categorical penalties). To date, the DOL has 
not removed any of these other categorical penalties.
    3. Reduction of Litigation Over Regulatory Validity Issues. Both 
before and since the Ragsdale decision, there has been a significant 
amount of litigation regarding the validity of various FMLA 
regulations. In 67 percent of the reported cases on validity issues, 
various FMLA regulations have been invalidated and determined to have 
been outside the scope of the DOL's authority or contrary to the act 
(or would have been so decided if the court had ruled after the date of 
the Ragsdale decision).
    Litigation over validity issues has continued even after the 
Ragsdale decision. Much of this litigation could be avoided by revising 
the regulations. Litigation over validity issues is not in anyone's 
best interests. It costs all parties (the courts, employees and 
employers) unnecessary time and expense. To date, the DOL has not taken 
steps to address these numerous validity questions.
    The above data is taken from an FMLA litigation study that I and 
other colleagues at Spencer Fane conducted, beginning in 2002 and 
updated annually since then. Our study was prompted by a belief (based 
on our review of daily court case advance sheets) that regulatory 
validity questions seemed to be increasing. We wanted to determine if 
that was actually occurring. Our study was limited to FMLA cases in 
which the validity of an FMLA regulation was challenged.
    A copy of the study is attached and incorporated by reference. It 
indicates that, as of March 31, 2005, there have been 79 reported court 
decisions in which the validity of an FMLA regulation was challenged. 
The validity of 13 different FMLA regulations was called into question. 
Of those 79 decisions, 67 included a ruling on the validity issue (and 
12 were decided on other grounds). Of the 67 decisions in which there 
was a ruling on the validity issue, 67 percent of them held the 
regulation to be invalid or would have held it to be invalid if the 
case had been decided after (rather than before) the Ragsdale decision.
    The Ragsdale decision has not stopped the litigation over validity 
issues. Although there have been more than 100 cases (not included in 
our study) that have followed or cited to the Ragsdale decision, there 
are still numerous other lawsuits in which validity issues are being 
litigated. Such litigation is not a good use of judicial, employer, or 
employee effort and resources when sound regulatory revisions would 
likely preclude much of this litigation.
    The lawsuits mentioned above do not include hundreds of FMLA 
lawsuits involving non-validity issues (such as interpretation, 
application, and other problems faced by employers in attempting to 
comply with the FMLA). When those lawsuits are added to the validity 
lawsuits, there is a significant amount of time and expense being 
invested over issues that could be and should be resolved at the 
regulatory level instead of in the courts.
    4. Prevention of FMLA Abuse. The regulations allow easy abuse by 
employees of FMLA entitlements without providing employers with any 
effective tools to prevent such abuses. In fact, the regulations 
actually tie the hands of the employer by prohibiting certain actions 
that would help an employer combat the abuses. The FMLA has become a 
national vacation policy for employees who are inclined to abuse the 
FMLA. Such employees can frequently be absent from work with no adverse 
    If an employee abuses the FMLA, how much work time can he/she miss? 
Under the FMLA, an eligible full-time employee is entitled to 60 FMLA 
days per year. This means that the employee can actually miss work at 
least 1 day a week with impunity by taking FMLA intermittent leave. 
This allows an employee to be absent from work 23 percent of the time 
for the rest of the employee's work life (i.e., he/she can miss 60 of 
the 260 work days in a year).
    How easy is it for abuse to occur? Most of the abuses involve 
intermittent leave for unscheduled absences due to a chronic serious 
health condition. In particular, an employee with a chronic serious 
health condition simply has to: (a) see his/her doctor once and obtain 
a prescription for medication; (b) obtain a medical certification that 
he/she needs to be absent from work periodically (intermittently) for 
the rest of his/her lifetime (which certification seems fairly easy to 
obtain from his/her health care provider); and (c) call the employer 
right before work begins to say that he/she is taking an ``FMLA day.'' 
Although intermittent leave is only permitted if ``medically 
necessary,'' it is the employee (not his/her health care provider) who 
is making that decision on a day-to-day basis, while the employer is 
prohibited from even talking to the employee's health care provider 
except with the employee's consent (which the employee is not required 
to give and does not voluntarily give very often).
    Who is affected by FMLA abuses? Fortunately, there is a small 
percentage of employees who abuse the FMLA. Unfortunately, the abuses 
by even a small percentage of employees have a tremendous impact on the 
rest of the workforce (i.e., the majority of employees who do not abuse 
the FMLA). When an abuser is absent, his/her workload is usually 
absorbed by other employees (non-abusers). Abusers typically give no 
advance notice of the need to be absent (other than calling in shortly 
before the start of his/her shift). Consequently, it is usually not 
feasible for an employer to obtain temporary help, and the rest of the 
workforce has to cover for the abuser. It is incredibly unfair to 
expect the vast majority of employees who do not abuse the FMLA to do 
the work of the abusers.
    In addition, abuse of the FMLA creates morale problems within the 
workforce as a whole. The non-abusers know when abuse is occurring, and 
they resent the abuses and how it affects their own workloads. Non-
abusers have even started filing internal complaints with their 
employers about FMLA abuses. They wonder why the employer does not fire 
the abusers.
    The reason why abusers are not fired for abusing the FMLA is 
because it is virtually impossible for an employer to take any adverse 
action. The FMLA regulations on intermittent leave for chronic 
conditions allow the employee (not a doctor) to make the medical 
determination as to whether he/she can work on any given day. The 
employer has no effective mechanism for verifying whether the employee 
is truly unable to work due to his/her medical condition or if the 
employee is even absent that day because of the medical condition. If 
the employer requires a note from the employee's doctor regarding a 
particular FMLA absence (which the employer may request no more often 
than every 30 days), the abusers seem to be able to easily obtain one.
    Healthcare providers have told me that they provide such notes 
(normally after the fact), usually based solely on the employee's word 
that he/she was unable to work. The healthcare provider has no way of 
knowing retroactively, and without having examined the employee, 
whether the employee's absence was medically necessary. If a healthcare 
provider is in no position to question the employee's judgment about 
the ``medical necessity'' of an absence, who is? And why is the 
employee allowed to be the sole party who makes that decision, 
especially since the employee has such a vested interest in the 
    Based on my experience in working with employers, I believe that 
they are interested in and doing their best to comply with the FMLA and 
to honor legitimate requests for FMLA leave. I also know that they are 
frustrated by and strongly opposed to FMLA abuses. Most of the employer 
witnesses at the Roundtable spoke out strongly in favor of honoring 
employees' rights and spoke out strongly against the abuse issue.
    Although the Roundtable witnesses from employee rights' 
organizations voiced strong support of FMLA rights and expansion, I do 
not recall any of them voicing strong opposition to FMLA abuse or the 
need to prevent it. I have also read a fair amount of FMLA literature 
that has been issued by both labor organizations and advocates for 
employee rights. The literature does not seem to address the abuse 
issue. I am genuinely baffled by what seems to be an apparent lack of 
concern by these groups about FMLA abuse (especially when the vast 
majority of their constituents and those they claim to protect are non-
abusers who bear the brunt of the abuses).
    In light of the fact that non-abusers are adversely affected by 
FMLA abuse (in terms of their own morale and by absorbing the abusers' 
workloads), I would think that labor and employee advocate groups would 
be taking a strong position against FMLA abuse. I encourage these 
groups to become vocal about their opposition to FMLA abuse, instead of 
wearing blinders and ignoring it or trivializing it. They may claim 
that it is only a minority of employees who abuse the FMLA (a fact I do 
not dispute), but the effect of the abuse hurts the majority of 
employees who do not abuse it. Many of these groups are in favor of 
expanding the FMLA to give protection (FMLA leave) to employees who are 
the victims of domestic abuse. I would think they would be as equally 
committed to protecting employees who are the victims of FMLA abuse.
    The abuse issue provides an ideal opportunity for the labor and 
employee advocate groups to speak out against FMLA abuse (on behalf of 
the significant majority of their members who are non-abusers), to 
encourage DOL to address the abuse issue, and to join forces with 
employers to minimize abuses. Regulatory reform is needed to address 
the abuse issue, if for no other reason than out of respect for the 
vast majority of employees who make legitimate use of the FMLA and do 
not abuse it. The abuses of the few simply should not be allowed to 
interfere with or outweigh the rights of the many who do not abuse the 
    5. Reduction of Litigation Over the Act's Intent. The act, as 
adopted by Congress, specifically states at the beginning that it is 
``An Act . . . To grant family and temporary medical leave under 
certain circumstances.'' [Emphasis added.] It was never intended to 
permit ``permanent'' medical leaves, even on an intermittent basis. It 
is the regulations that allow these permanent medical leaves, which are 
the types of FMLA leaves where the abuses are occurring.
    The Courts have already started to address this issue involving 
permanent FMLA medical leaves. Two Circuit Courts of Appeal (the 7th 
and 8th Circuits), as well as various Federal districts courts, have 
taken the position that the act was not intended to allow FMLA leaves 
on an intermittent basis for the rest of an employee's work life:

        ``Courts have been reluctant to read the FMLA as allowing 
        unscheduled and unpredictable, but cumulatively substantial, 
        absences . . .'' Collins v. NTN-Bower Corp., 272 F.3d 1006 (7th 
        Cir. 2001).
        ``. . . the FMLA does not provide an employee suffering from 
        depression with a right to `unscheduled and unpredictable, but 
        cumulatively substantial, absences' or a right to `take 
        unscheduled leave at a moment's notice for the rest of her 
        career.'' Spangler v. Federal Home Loan Bank of Des Moines, 278 
        F.3d 847 (8th Cir. 2001).

    I believe that the Courts will, sooner or later, resolve this issue 
about permanent medical leaves. However, a better resolution would be 
for DOL to address it with revised regulations. If DOL addresses the 
issue, all stakeholders will have the opportunity to provide input and 
proposed resolutions, which, in my opinion, is preferable for all 
concerned than a court mandate.
    6. Elimination of Interpretive Problems, Complexity, and 
Inconsistencies. The FMLA regulations are more difficult for employers 
to understand, interpret and apply than they need to be. They are the 
most complex set of employment regulations with more interpretive 
problems than I have ever seen in my career. The regulations suffer 
from the following deficiencies (which are examples, but by no means 
intended to be an exhaustive list):
    a. The regulations create numerous interpretation problems. One of 
the most common questions raised by employers when they consult with me 
is the definition of ``serious health condition.'' The definition is 
extremely long, with numerous sub-parts, and has to be read in 
conjunction with other definitions and other regulatory provisions.
    b. The regulations create numerous application problems. The 
various notice provisions are a prime example. Employers are given 
extremely short and unrealistic time frames in which to comply with 
some of the notice provisions.
    c. Some of the topics covered in the regulations are covered in 
more than one regulation, thereby making it difficult to find all 
applicable provisions.
    d. Some of the regulations appear to conflict with each other.
    e. DOL has issued advisory opinion letters that appear to expand 
not only the act but the regulations themselves.

D. What Specific Regulatory Reform is Needed?

    Although I believe that FMLA regulatory reform is sorely needed and 
long overdue, not all of the regulations are problematic. I believe it 
is appropriate for DOL to focus on those parts of the regulations that 
are creating the problems.
    Types of Leaves. Before I discuss specific regulatory issues that 
need to be addressed, I believe it is helpful to understand the types 
of leaves that are available under the FMLA. Some of them are 
problematic; some of them are not.
    1. Family Leaves. The act provides two types of FMLA leave: family 
leave and medical leave. Family leave (sometimes referred to as 
maternity and paternity leave) is for the purpose of providing bonding 
time between a parent and a newborn child, newly adopted child, or a 
newly placed foster child. Family leave is generally not a problem for 
employers for three reasons:
    a. It is easily verifiable. In addition, it is normally noticeable. 
When an employee has a new child, this milestone event is normally 
well-known by the employer and other employees. This, of course, makes 
it difficult for an employee to misrepresent his/her need for FMLA 
    b. It must be taken within 1 year after the birth, adoption, or 
foster placement of the child. This means that the leave will be for a 
temporary period of time (not a permanent period of time or for the 
rest of the employee's work life).
    c. It must be taken on a continuous basis, unless the employer 
consents to it being taken on an intermittent or reduced schedule 
basis. As a practical matter, most employees request family leave on a 
continuous basis, and most employers usually require that such a leave 
be taken on a continuous basis. However, when both parties mutually 
agree to taking such leave on an intermittent or reduced schedule 
basis, a specific schedule for the leave is established (such as the 
employee working fewer hours each day or fewer days each week). This 
means that the employer can plan for the absence and arrange to have 
the employee's workload temporarily allocated to others in a way that 
will not be unduly burdensome. This also means that the employee cannot 
abuse FMLA leave by taking it on an unscheduled, unpredictable basis.
    As a result of the above factors, we generally do not see abuses of 
family leave. I do not believe that the FMLA regulations need to be 
fixed in any major way with respect to family leave.
    2. Medical Leaves. The other type of leave under the act is the 
medical leave. In my experience working with employers, certain types 
of FMLA medical leaves are not as problematic as others. The FMLA 
provides two types of medical leaves: continuous leaves and 
intermittent leaves. Overall, continuous leaves are generally not a 
problem in terms of abuse, whereas intermittent leaves have so many 
loopholes that abuse can easily occur. I have discussed each of these 
types of leaves below:
    a. Continuous Medical Leaves. Continuous leaves are normally taken 
for short-term or acute medical conditions. Sometimes such leaves last 
for more than a week (up to the maximum of 12 weeks); sometimes they 
last a week or less (and as short as one day or less).
    (1) Continuous Medical Leaves of More Than 1 Week. If a continuous 
leave is expected to last more than a full week, an employer usually 
does not experience abuses. Such leaves are easily verifiable in most 
instances. In many cases, the leave is scheduled in advance due to 
planned surgery/medical procedures and recovery therefrom. In addition, 
an employer can normally make appropriate arrangements to reallocate 
the employer's workload. Employers generally do not experience abuse of 
these types of longer-term continuous leaves.
    (2) Continuous Medical Leaves of 1 Week or Less. If a continuous 
leave is expected to last a week or less, an employer often experiences 
problems. The major problem with such short-term continuous leaves is 
not usually abuse by employees as much as doubt about whether the 
condition in question is truly a ``serious'' health condition. If an 
employee only has to miss 2 or 3 days of work, one wonders just how 
serious the condition can possibly be. This particular issue goes more 
to the definition of ``serious health condition'' than abuse, and I 
refer you to a subsequent discussion about that issue.
    b. Intermittent Medical Leaves. Intermittent leaves are sometimes 
taken for short-term or acute conditions and sometimes are taken for 
permanent or chronic conditions.
    (1) Intermittent Medical Leaves for Short-Term or Acute Conditions. 
When an intermittent leave is taken for a short-term condition, it is 
usually needed because of planned or scheduled treatment (such as 
radiation treatment, chemotherapy, physical therapy, etc.). Under the 
FMLA regulations, any intermittent leave for planned or scheduled 
treatment requires that the employee schedule the treatment to be as 
least disruptive to the employer's operations as possible.
    Such leaves are easily verifiable, and the employer generally knows 
that the employee is in fact using the time off for a valid FMLA 
reason. The employer also knows that such leaves have a definitive 
ending point (anywhere up to perhaps 6 months), at which point the 
employee will return to full duty. In other words, they are 
predictable. In light of the foregoing, employers generally do not 
experience a substantial amount of abuse when intermittent leave is 
used for planned or scheduled treatment/therapy.
    (2) Intermittent Medical Leaves for Long-Term, Permanent or Chronic 
Conditions (Excluding Terminal Conditions). Intermittent leave for a 
long-term, permanent, or chronic condition is the type of leave where 
most FMLA abuses occur. This type of leave is discussed in more detail 
in the next section.
    Problematic Areas. As explained above, some types of FMLA leave are 
not a problem and no major revision of the regulations regarding them 
may be necessary. However, other types of leaves and FMLA issues create 
major problems. The following section identifies some of the FMLA 
issues that create major compliance and abuse problems that need to be 
addressed with revised regulations:
    1. Intermittent Medical Leaves for Long-Term, Permanent, or Chronic 
Conditions and Abuse. Abuse of the FMLA is occurring with increasing 
frequency in connection with intermittent medical leaves for long-term, 
permanent, or chronic conditions (excluding terminal conditions). There 
are many medical conditions that appear to qualify as long-term, 
permanent or chronic ones. The most common ones for which FMLA 
intermittent leave is requested include migraines, asthma, arthritis, 
bronchitis, fibromyalgia, hypertension, sleep apnea, and mental 
disorders (such as depression, anxiety, bi-polar disorder, post-
traumatic stress syndrome, etc.).
    Most of these conditions have several common denominators: (a) 
their symptoms are subjective in nature; (b) the extent and scope of 
the symptoms are difficult for a healthcare provider to evaluate and 
measure; (c) the conditions are difficult to treat; and (d) the most 
common form of treatment appears to be prescription medication.
    Once the employee's healthcare provider certifies that the employee 
has the medical condition and that the employee will periodically need 
to be absent because of it, all the employee has to do is call the 
employer before his/her shift begins and state that he/she is taking an 
FMLA day due to the condition. The employee does not need to see or 
even call the healthcare provider. The employee gets to make the 
decision as to whether the condition renders him/her unable to work. 
The employer gets no say on the medical necessity of the absence; the 
healthcare provider need not be contacted or consulted by the employee 
and the employer is prohibited from making such contact.
    In most of these cases, the employer does not doubt that the 
condition itself exists. Therefore, it makes no sense to obtain a 
second and third medical opinion regarding the existence of the 
condition. The abuses arise in connection with the employee using the 
condition as an excuse to be absent from work. An employer has no 
effective mechanism under the regulations: (a) to ascertain with any 
degree of certainty whether an absent on any particular day is 
``serious'' enough to justify an absence from work; or (b) to determine 
if the absence is really related to an FMLA condition at all. Employees 
who abuse the FMLA are well aware of these obstacles faced by an 
employer. These obstacles are one of the reasons that abuse can so 
easily occur in connection with an intermittent leave for a long-term, 
permanent, or chronic condition.
    2. Definition of ``Serious Health Condition.'' The two most common 
questions I get from employers about the FMLA involve the abuse issue 
discussed above and the definition of ``serious health condition.'' As 
mentioned earlier in this letter, the definition is extremely complex 
and lengthy and seems to have been expanded by the DOL to the point of 
covering what would normally be considered as ``non-serious'' health 
conditions. The definition needs a major overhaul.
    3. Medical Information and Certification Process. If an employee 
wants to exercise his/her rights under the FMLA, an employer should be 
able to obtain necessary medical information to verify the existence of 
a serious health condition and the need for FMLA leave. Instead, the 
employer is generally restricted from doing so. An employer has such 
rights under the Americans with Disabilities Act (ADA) and is not 
restricted from obtaining necessary medical information to verify the 
existence of a disability or the need for an accommodation under that 
law. It makes no sense at all why there are two totally different 
approaches to this issue under the FMLA and ADA (especially when the 
FMLA regulations incorporate the ADA definition of ``essential job 
functions'' and makes reference to the ADA in several provisions).
    4. Notice Provisions. The FMLA regulations go to great length and 
in great detail regarding notice provisions imposed upon employers. In 
some cases, these notice provisions are unrealistic and arguably are 
beyond the scope of DOL's authority (considering that the only notice 
required by the act itself is a poster). Although employers are subject 
to numerous notice requirements, the regulations place very little 
responsibility on employees to provide adequate notice to employers of 
the need for FMLA leave.
    5. Other Problematic Areas. I believe the above issues are the 
major problematic areas under the FMLA regulations. However, they are 
by no means the only problems.
    Employers also face many challenges related to: (a) tracking FMLA 
intermittent leave (since it can be used in increments equal to the 
smallest increment that can be measured by the employer's system, such 
as one minute); (b) not being able to disqualify an employee who has 
taken FMLA leave from receiving a perfect attendance bonus (even if the 
employee has missed a substantial part of the measuring period and even 
though employees with better attendance records who are not eligible 
for FMLA can be disqualified); and (c) not being able to require an 
employee to accept light duty (since the FMLA regulations allow an 
employee to take full-time leave even if the employee can perform some 
or all of his/her job).
    I strongly believe that the problems identified above can be 
resolved through FMLA regulatory reform in a manner that is consistent 
with the intent of the act, that does not result in any major reduction 
of regulatory protections for employees, and that will not negatively 
affect employees who legitimately use FMLA leave. I am not proposing 
that we tear the house down; I am proposing that we scrub it and clean 
it up.
    Quite frankly, if DOL would just address and resolve what I believe 
are the three biggest regulatory problems, I suspect that most of the 
controversy surrounding the regulations would subside. First, DOL needs 
to put meaning back into the word ``serious'' so that FMLA absences are 
for truly ``serious'' health conditions. Second, DOL needs to limit 
FMLA medical leaves to ``temporary'' medical leaves, especially since 
the act itself specifies that it is for temporary medical leaves (not 
permanent medical leaves, like the ones taken by abusers as a form of 
vacation). Third, DOL needs to eliminate the obstacles that make 
proving abuse almost impossible and to replace them with effective and 
workable tools that employers can use to address abuse issues (like 
permitting employers to have reasonable communications directly with 
healthcare providers and requiring employees to provide consent for 
those communications).

E. Conclusion

    There is no question that the FMLA regulations need to be revised 
so that they provide a meaningful and practical guide to FMLA 
compliance. Employers deserve adequate notice and a clearer 
understanding of what is required so that they can maximize their 
chances of complying with the act. Employees deserve the opportunity to 
exercise their rights in a legitimate manner without being able to 
abuse the act.
    In light of all of the foregoing, I encourage the committee, the 
Senate, Congress as a whole, and the Administration to support FMLA 
regulatory reform so that we can put the problems described above 
behind us. The problems are fixable, and if properly fixed in a fair 
and balanced manner, I have no doubt that FMLA problems, controversy, 
and litigation over interpretative and validity questions will quickly 
become a thing of the past.
    Thank you for consideration of my comments and the opportunity to 
share my perspective.
            Respectfully submitted,
                                  Sue K. Willman, JD, SPHR.

                               EXHIBIT A
                             SUE K. WILLMAN

    1. Beginning in 2002, I and other colleagues at Spencer Fane 
conducted and published an FMLA litigation study (``Reported Court 
Cases in Which the Validity of an FMLA Regulation Has Been 
Challenged''). We have updated that study on an annual basis since that 
time. The most recent update was made available to the Senate Health, 
Education, Labor, and Pensions Committee at the Roundtable on June 23. 
A copy is attached as a part of this position statement.
    2. I and two other colleagues at Spencer Fane prepared and 
submitted an amicus curiae brief (on behalf of the Society for Human 
Resource Management) in the first FMLA case to be heard by the U.S. 
Supreme Court (Ragsdale v. Worldwide Wolverine, Inc., 122 S.Ct. 1155, 
decided on March 22, 2002). Our brief raised the issue on which the 
Supreme Court ultimately decided the Ragsdale case.
    3. During the last several years, the Department of Labor (DOL) has 
conducted series of meetings with various interest groups to discuss 
their experiences with the FMLA regulations. I was one of numerous 
witnesses who met with the DOL during those meetings.
    4. For several years, I was involved with the National Coalition to 
Protect Family Leave (formerly known as the FMLA Technical Corrections 
Coalition). My primary role was to provide the legal perspective on the 
challenges faced by employers in complying with the FMLA regulations.
    5. I have made numerous presentations to human resource 
professional organizations and conducted dozens of client training 
sessions on FMLA compliance. I have also published materials on the 
FMLA and been interviewed numerous times by the media regarding the 
FMLA and its regulations.

                               EXHIBIT B

    The following 13 FMLA regulations (which include the regulation 
invalidated by Ragsdale) are not intended to be an exhaustive list of 
all FMLA regulations that include or arguably include categorical 

1. 29 CFR 825.207(h)

    When an employee or employer elects to substitute paid leave (of 
any type) for unpaid FMLA leave under circumstances permitted by these 
regulations, and the employer's procedural requirements for taking that 
kind of leave are less stringent than the requirements of FMLA (e.g., 
notice or certification requirements), only the less stringent 
requirements may be imposed. An employee who complies with an 
employer's less stringent leave plan requirements in such cases may not 
have leave for an FMLA purpose delayed or denied on the grounds that 
the employee has not complied with stricter requirements of FMLA. 
However, where accrued paid vacation or personal leave is substituted 
for unpaid FMLA leave for a serious health condition, an employee may 
be required to comply with any less stringent medical certification 
requirements of the employer's sick leave program. See 825.302(g), 
825.205(e) and 825.306(c).

2. 29 CFR 825.208(c)

    If the employer requires paid leave to be substituted for unpaid 
leave, or that paid leave taken under an existing leave plan be counted 
as FMLA leave, this decision must be made by the employer within 2 
business days of the time the employee gives notice of the need for 
leave, or, where the employer does not initially have sufficient 
information to make a determination, when the employer determines that 
the leave qualifies as FMLA leave if this happens later. The employer's 
designation must be made before the leave starts, unless the employer 
does not have sufficient information as to the employee's reason for 
taking the leave until after the leave commenced. If the employer has 
the requisite knowledge to make a determination that the paid leave is 
for an FMLA reason at the time the employee either gives notice of the 
need for leave or commences leave and fails to designate the leave as 
FMLA leave (and so notify the employee in accordance with paragraph 
(b)), the employer may not designate leave as FMLA leave retroactively, 
and may designate only prospectively as of the date of notification to 
the employee of the designation. In such circumstances, the employee is 
subject to the full protections of the act, but none of the absence 
preceding the notice to the employee of the designation may be counted 
against the employee's 12-week FMLA leave entitlement.

3. 29 CFR 825.213(f)

    When an employee fails to return to work, any health and non-health 
benefit premiums which this section of the regulations permits an 
employer to recover are a debt owed by the non-returning employee to 
the employer. The existence of this debt caused by the employee's 
failure to return to work does not alter the employer's 
responsibilities for health benefits coverage and, under a self-
insurance plan, payment of claims incurred during the period of FMLA 
leave. To the extent recovery is allowed, the employer may recover the 
costs through deduction from any sums due to the employee (e.g., unpaid 
wages, vacation pay, profit sharing, etc.), provided such deductions do 
not otherwise violate applicable Federal or State wage payment or other 
laws. Alternatively, the employer may initiate legal action against the 
employee to recover such costs.

4. 29 CFR 825.300(b)

    An employer that willfully violates the posting requirement may be 
assessed a civil money penalty by the Wage and Hour Division not to 
exceed $100 for each separate offense. Furthermore, an employer that 
fails to post the required notice cannot take any adverse action 
against an employee, including denying FMLA leave, for failing to 
furnish the employer with advance notice of a need to take FMLA leave.

5. 29 CFR 825.301(f)

    If an employer fails to provide notice in accordance with the 
provisions of this section, the employer may not take action against an 
employee for failure to comply with any provision required to be set 
forth in the notice.

6. 29 CFR 825.302(d)

    An employer may also require an employee to comply with the 
employer's usual and customary notice and procedural requirements for 
requesting leave. For example, an employer may require that written 
notice set forth the reasons for the requested leave, the anticipated 
duration of the leave, and the anticipated start of the leave. However, 
failure to follow such internal employer procedures will not permit an 
employer to disallow or delay an employee's taking FMLA leave if the 
employee gives timely verbal or other notice.

7. 29 CFR 825.302(g)

    An employer may waive employees' FMLA notice requirements. In 
addition, an employer may not require compliance with stricter FMLA 
notice requirements where the provisions of a collective bargaining 
agreement, State law, or applicable leave plan allow less advance 
notice to the employer. For example, if an employee (or employer) 
elects to substitute paid vacation leave for unpaid FMLA leave (see 
825.207), and the employer's paid vacation leave plan imposes no prior 
notification requirements for taking such vacation leave, no advance 
notice may be required for the FMLA leave taken in these circumstances. 
On the other hand, FMLA notice requirements would apply to a period of 
unpaid FMLA leave, unless the employer imposes lesser notice 
requirements on employees taking leave without pay.

8. 29 CFR 825.305(e)

    If the employer's sick or medical leave plan imposes medical 
certification requirements that are less stringent than the 
certification requirements of these regulations, and the employee or 
employer elects to substitute paid sick, vacation, personal or family 
leave for unpaid FMLA leave where authorized (see 825.207), only the 
employer's less stringent sick leave certification requirements may be 

9. 29 CFR 825.306(c)

    If the employer's sick or medical leave plan requires less 
information to be furnished in medical certifications than the 
certification requirements of these regulations, and the employee or 
employer elects to substitute paid sick, vacation, personal or family 
leave for unpaid FMLA leave where authorized (see 825.207), only the 
employer's lesser sick leave certification requirements may be imposed.

10. 29 CFR 825.310(c)

    An employer may seek fitness-for-duty certification only with 
regard to the particular health condition that caused the employee's 
need for FMLA leave. The certification itself need only be a simple 
statement of an employee's ability to return to work. A healthcare 
provider employed by the employer may contact the employee's healthcare 
provider with the employee's permission, for purposes of clarification 
of the employee's fitness to return to work. No additional information 
may be acquired, and clarification may be requested only for the 
serious health condition for which FMLA leave was taken. The employer 
may not delay the employee's return to work while contact with the 
healthcare provider is being made.

11. 29 CFR 825.310(f)

    An employer may delay restoration to employment until an employee 
submits a required fitness-for-duty certification unless the employer 
has failed to provide the notices required in paragraph (e) of this 

12. 29 CFR 825.312(h)

    If the employer has a uniformly-allied policy governing outside or 
supplemental employment, such a policy may continue to apply to an 
employee while on FMLA leave. An employer which does not have such a 
policy may not deny benefits to which an employee is entitled under 
FMLA on this basis unless the FMLA leave was fraudulently obtained as 
in paragraph (g) of this section.

13. 29 CFR 825.700(a)

    An employer must observe any employment benefit program or plan 
that provides greater family or medical leave rights to employees than 
the rights established by the FMLA. Conversely, the rights established 
by the act may not be diminished by any employment benefit program or 
plan. For example, a provision of a CBA which provides for 
reinstatement to a position that is not equivalent because of seniority 
(*e.g., provides lesser pay) is superseded by FMLA. If an employer 
provides greater unpaid family leave rights than are afforded by FMLA, 
the employer is not required to extend additional rights afforded by 
FMLA, such as maintenance of health benefits (other than through 
COBRA). If an employee takes paid or unpaid leave and the employer does 
not designate the leave as FMLA leave, the leave taken does not count 
against an employee's FMLA entitlement.
 Reported Court Cases in Which the Validity of an FMLA Regulation Has 
                            Been Challenged

                           EXECUTIVE SUMMARY
                     UPDATED REPORT MARCH 31, 2005

                    SPENCER FANE BRITT & BROWNE LLP

    In 1993, Congress enacted the Family and Medical Leave Act of 1993, 
Pub. L. No. 103-3, 107 Stat. 6, codified at 29 U.S.C.  2601, et seq. 
and 5 U.S.C. 6381, et seq. (the Act or the FMLA). The FMLA became 
effective on August 5, 1993. The act requires covered employers to 
allow eligible employees 12 weeks of leave during a 12 month period to 
attend to certain medical and family situations, including the birth of 
a child, the adoption or foster care of a child, and the need to care 
for one's self, spouse, child or parent with a serious health 
    Section 2654 of the act directs the Secretary of Labor to 
promulgate regulations ``as are necessary to carry out'' the provisions 
of the act. The Secretary of Labor accordingly issued interim final 
regulations on June 4, 1993 (which became effective on August 5, 1993), 
58 Fed. Reg. 31,812 (1993), codified at 29 C.F.R. pt. 825, and final 
regulations on January 6, 1995 (which became effective on April 6, 
1995), 60 Fed. Reg. 2237 (1995), replacing the interim final 
regulations at 29 C.F.R. pt. 825.
    Over the past several years, courts have addressed the validity of 
these regulations in varying contexts. On March 19, 2002, the U.S. 
Supreme Court issued its first decision under the FMLA. In that case, 
the Supreme Court held that the FMLA regulation in question was 
invalid. Ragsdale v. Wolverine Worldwide, Inc., 122 S. Ct. 1155 (2002).
    As a result of the Ragsdale decision, the law firm of Spencer Fane 
Britt & Browne LLP conducted a survey of all the court decisions 
reported by Westlaw and/or LexisNexisTM involving challenges to the 
validity of the FMLA regulations. The survey initially covered both 
published and unpublished decisions reported as of March 20, 2002, and 
was updated thereafter as of January 1, 2003; August 1, 2003; January 
31, 2004; and March 31, 2005.
    This report represents the results of the original and updated 
survey. The information in this report does not purport to reflect all 
lawsuits filed in which an FMLA regulation has been challenged or all 
court decisions involving challenges to the validity of the 
regulations. Instead, the information reflects only those lawsuits in 
which court decisions have been rendered and the decisions were 
reported by Westlaw and/or LexisNexisTM through March 31, 2005.

                           EXECUTIVE SUMMARY

     There have been 79 reported court decisions in which 
the validity of an FMLA regulation was challenged. All of the 
underlying cases were filed and the relevant decisions were made during 
the period of August 5, 1993 (the effective date of the act and the 
Interim Final Regulations) through March 31, 2005.

     These 79 court decisions represent 78 different court 
cases. (There is one more court decision than the number of court cases 
because a district court issued two separate opinions addressing two 
separate challenges in the same underlying case). In the situation 
where a lower court issued a reported decision which was subsequently 
appealed, and the reviewing appellate court also issued a reported 
decision, the lower court case and the appellate court case have been 
treated as two separate court cases. These 79 court decisions (78 court 
cases) represent 73 different underlying cases.

     Of these 79 court decisions:
    (a) 67 included a ruling on the validity issue; and
    (b) 12 were decided on other grounds and did not include a ruling 
on the validity issue.

     Of the 67 court decisions in which there was a ruling 
on the validity issue:
    (a) 61 percent (41 decisions) held that the FMLA regulation in 
question was invalid; and
    (b) 39 percent (26 decisions) held that the FMLA regulation in 
question was valid.

     Of the 67 court decisions in which there was a ruling 
on the validity issue, 51 were decided on or before the date of the 
Supreme Court's decision in Ragsdale, and 4 of those decisions were 
overruled by Ragsdale. When this factor is taken into account, it means 

     67 percent (45 of 67 decisions) have held that the FMLA 
regulation in question was invalid or would have held it to be invalid 
if the case had been decided after Ragsdale.
                   analysis by regulation challenged
     These 58 court decisions involved challenges to 13 
different FMLA regulations:

      825.110      825.207       
825.216      825.302      825.700

      825.111      825.208       
825.220      825.303

      825.114      825.215       
825.301      825.305

     The 3 most frequently challenged regulations were:




     Section 825.208(c) (or a related portion of  825.208) 
was the subject of 32 of the reported decisions (of which 24 included a 
ruling on the validity issue):
    (a) 75 percent (18 of 24 decisions in which the validity issue was 
decided) held the regulation to be invalid;
    (b) 25 percent (6 of 24 decisions in which the validity issue was 
decided) held the regulation to be valid; and
    (c) 8 of the 32 cases were decided on other grounds and did not 
include a ruling on the validity issue.

Note: The Ragsdale decision involved a regulation similar (in part) to 
 825.208(c). Consequently, the 8 decisions referenced above in which 
the regulation was found to be valid may now be questionable in light 
of Ragsdale.

     Section 825.110(d) was the subject of 20 of the 
reported decisions (of which 17 included a ruling on the validity 
    (a) 88 percent (15 of 17 decisions in which the validity issue was 
decided) held the regulation to be invalid;
    (b) 12 percent (2 of 17 decisions in which the validity issue was 
decided) held the regulation to be valid; and
    (c) 13 of the 20 cases were decided on other grounds and did not 
include a ruling on the validity issue.
     Section 825.700(a) was the subject of 14 of the 
reported decisions (all of which included a ruling on the validity 
    (a) 71 percent (10 of 14 decisions in which the validity issue was 
decided) held the regulation to be invalid; and
    (b) 29 percent (4 of 14 decisions in which the validity issue was 
decided) held the regulation to be valid.

Note: Section 825.700(a) was the subject of the Ragsdale decision. In 
light of the Supreme Court's ruling that  85.700(a) is invalid, the 4 
decisions referenced above in which the regulation was held to be valid 
have now been overruled by Ragsdale.


     Of the 67 court decisions in which there was a ruling 
on the validity issue:
    (a) 1 was decided by the U. S. Supreme Court;
    (b) 21 were decided by Federal Courts of Appeal; and
    (c) 45 were decided by Federal District Courts.

     Although reported state court decisions were surveyed, 
there were no state court decisions involving the validity of an FMLA 
     At the Supreme Court level, the Court has only decided 
one case involving the validity of an FMLA regulation. The Court found 
the regulation ( 825.700(a)) to be invalid.
     At the Federal Court of Appeals level (in which 21 
decisions involved rulings on the validity issue):
    (a) 10 of the 12 Circuits of the Court of Appeals (83 percent) have 
issued rulings on the validity issue; and
    (b) 2 of the 12 Circuits of the Court of Appeals (17 percent) have 
not yet issued such a ruling (the 3rd and D.C. Circuits).

     Of the 21 Federal Court of Appeals decisions in which 
there has been a ruling on the validity issue:
    (a) 52 percent (11 decisions) have held that the FMLA regulation in 
question was invalid; and
    (b) 48 percent (10 decisions) have held that the FMLA regulation in 
question was valid.

     Of the 10 Federal Court of Appeals decisions holding 
the FMLA regulation in question invalid,
    (a) 4 of the decisions (1 each by the 5th and 11th Circuits; 2 by 
the 8th Circuit) involved the same regulation held to be invalid in 
Ragsdale; and
    (b) in all 4 decisions, that same regulation was held to be 

     At the District Court level (in which 45 decisions have 
involved rulings on the validity issue):
    (a) 28 of the 94 District Courts (30 percent) have issued rulings 
on the validity issue; and
    (b) 66 of the 94 District Courts (70 percent) have not yet issued 
such a ruling.

     Of the 45 District Court decisions in which there has 
been a ruling on the validity issue:
    (a) 64 percent (29 decisions) have held that the FMLA regulation in 
question was invalid; and
    (b) 36 percent (16 decisions) have held that the FMLA regulation in 
question was valid.

     Of the 16 District Court decisions in which an FMLA 
regulation was held to be valid, 12 were decided on or before the date 
of the Supreme Court's decision in Ragsdale, and 4 of those decisions 
were overruled by Ragsdale. When this factor is taken into account, it 
means that:

     73 percent (33 of 45 decisions) have held that the FMLA 
regulation in question was invalid or would have held it to be invalid 
if the case had been decided after Ragsdale.

     Of the 45 District Court decisions in which there has 
been a ruling on the validity issue:
    (a) the underlying District Courts were located within 11 of the 12 
Circuits of the Court of Appeals; and
    (b) only 1 Circuit of the Court of Appeals (the D.C. Circuit) has 
had no District Court decision involving a ruling on the validity 

     Of the 45 District Court decisions in which there has 
been a ruling on the validity issue:
    (a) the underlying District Courts were located in 24 of the 55 U. 
S. states and territories (44 percent); and
    (b) 31 of the 55 U.S. states and territories (56 percent) have not 
yet had a District Court decision involving the validity of an FMLA 

Note: The U.S. states and territories include the 50 States, the 
District of Columbia, Puerto Rico, the Virgin Islands, Guam, and the 
Northern Mariana Islands.

    Spencer Fane Britt & Browne LLP 2002, 2003,2004, 2005.


    The Chairman. Thank you.
    Ms. Dohnalek?


    Ms. Dohnalek. Good morning and thank you for the privilege 
and the opportunity to be here today.
    I am a nurse manager for blood and marrow transplant 
inpatient oncology, apheresis, and dialysis at Georgetown 
University Hospital, and----
    The Chairman. Can you pull the microphone just a little 
closer to you?
    Ms. Dohnalek [continuing]. And I have been a manager there 
for 12 years, 8 years in my current position. And I would like 
to say we are the only magnet hospital in Washington, DC.
    I manage 75 full-time and part-time employees. Fifty of 
those are registered nurses. My experience with Family and 
Medical Leave goes back to its passage in 1993, and I would 
like to share some of my personal and professional perspectives 
with you.
    I do believe that employees have responsibilities to 
themselves and their families, along with work obligations. The 
Family and Medical Leave Act supports this and, in theory, is 
the right thing to do. However, in my experience as a nurse 
manager, the implementation and components of the law can be 
confusing, cumbersome, and difficult for the healthcare 
employer, and may in fact jeopardize patient care and safety. 
The fact that a hospital is a 24/7 operation creates additional 
pressures on the organization due to this law. In a busy 
hospital setting, units must be staffed appropriately to ensure 
that patients are receiving the care they require by 
individuals who are trained and qualified to provide this.
    In this type of setting, it is difficult to maintain the 
worker's secured position for 12 weeks. Most positions cannot 
remain unfilled for this amount of time. Although temporary 
help can provide a short-term alternative, it is expensive and, 
typically, inefficient in a healthcare setting, especially when 
dealing with specialized and critically ill patients, which we 
do in many settings.
    Staffing schedules made to ensure ratios that meet the 
needs of the patients are done well in advance. In healthcare 
there is rarely extra manpower, as many of you, I am sure, are 
aware. The loss of an employee directly affects patient care 
and impacts the entire team. In the Apheresis Center, for 
example, the nurses require 6 months orientation to care for a 
highly specialized patient population, so temporary help is not 
a solution there. The nurse-patient ratio is 1-to-1 and there 
are only two nurses that are employed under that budget. So if 
one nurse is out, then we are short 50 percent.
    So it can take many hours to manually develop a staffing 
matrix that meets the needs of the patients and staff. If you 
ask most nurse managers what their biggest dissatisfaction is, 
it would be the lack of skilled, experienced, and capable 
staff. The Family and Medical Leave Act can add to this heavy 
    Thank you.
    [The prepared statement of Ms. Dohnalek follows:]

                Prepared Statement of Laurie J. Dohnalek

    Mr. Chairman and Roundtable participants, my name is Laurie 
Dohnalek. I am the nurse manager for the Blood and Marrow Transplant, 
Inpatient Oncology, Apheresis and Dialysis Services at Georgetown 
University Medical Center. I have been a nurse manager for 12 years and 
in my current position for 8. As the nurse manager I am responsible for 
the operational finances, personnel and quality of patient care on 
these units which includes 75 full and part-time staff and the 
scheduling of 50 registered professional nurses, and 25 nursing 
assistants and unit secretaries. My experience with the Family Medical 
Leave Act goes back to the date of its passage in 1993. I would like to 
share my personal and professional perspectives with you as I have 
dealt with this legislation as a nurse manager in an academic medical 

Family Medical Leave Act (FMLA): A Nurse Managers Perspective

    Employees have responsibilities to themselves, and their families 
along with work obligations. The Family Medical Leave Act supports this 
and in theory is the right thing to do. However, in my experiences as a 
nurse manager, the implementation and components of the law can be 
confusing, cumbersome and difficult for the healthcare employer and may 
in fact jeopardize patient care and safety.
    The act itself can be somewhat vague in the following areas: who 
qualifies, what is the definition of family members and what is 
considered a serious health condition. If an individual is calling out 
sick frequently, it is the obligation of the manager to provide them 
with information on FMLA. Is this a time and attendance issue or a 
legitimate health issue? The implications of not adhering to the law 
are significant enough that the decisions are typically made in favor 
of the employee. It can also be difficult to make decisions for or with 
an employee not knowing basic information about the health problem, as 
it is protected under this law.
    The fact that hospitals are a 24/7 operation creates additional 
pressures on the organization due to this law. In a busy hospital 
setting, units must be staffed appropriately to ensure that patients 
are receiving the care they require by individuals who are trained and 
qualified to provide what is needed 24 hours a day. For example, on the 
inpatient units, qualified experienced nurses must be able to respond 
to patients 24 hours each day. In this type of setting it is difficult 
to maintain the workers secured position for 12 weeks. Most positions 
cannot remain unfilled for this amount of time. Although temporary help 
can provide a short-term alternative, it is expensive and typically 
inefficient in a healthcare setting, especially when dealing with 
specialized and critically ill patients.
    Overtime is another alternative but in an environment that is 
already struggling because of shortages of nurses and allied healthcare 
personnel, vacancies create a burden on already hard working staff and 
additional costs to the hospital. Under this scenario, which 
unfortunately is common, the hospital sustains a double loss. First the 
loss of a trained and competent staff member and the financial burden 
of paying and training a temporary worker who may not be able to 
provide the level of care of the person he or she is replacing. In 
addition, the hospital must also pay for the employment benefits for 
the individual that is not working.
    Intermittent Family Medical Leave (FML) and modified work schedules 
may be the most difficult to staff and time consuming to track. 
Staffing for a portion of a shift may be impossible and this period 
typically goes uncovered. This impacts patient care and safety. This 
also places undue burden on the system and colleagues. Other workers 
are entitled to their time away from work but may feel obligated to 
cover for the employee out on FML. Although the employee is requested 
to schedule leave at times that does not unduly disrupt operations and 
to notify the employer in advance, how can the organization be certain 
of this or control this? Covering for a certain time off, i.e. Mondays 
or extended periods is less cumbersome than intermittent short periods 
in a healthcare setting.
    Staffing schedules are made to ensure ratios that meet the needs of 
the patients. In healthcare there is rarely extra manpower. The loss of 
an employee directly affects patient care and impacts the entire team. 
In the Apheresis Center the nurses require 6 months orientation to care 
for this highly specialized patient population so temporary help is not 
a solution for this department. In addition the nurse to patient ratio 
is typically 1:1. Although other unit staff will and do attempt to 
cover for manpower losses, the nurse manager is always concerned about 
the impacts on the patient care environment, and especially the health 
and morale of those who are assigned to the unit. Fairness to the 
employee and maintaining the integrity of the unit is not easy under 
theses circumstances.
    It can take many hours to manually develop a staffing matrix that 
meets the needs of the patients and staff, while assuring fairness. 
When staff are taken out of the schedule for any reason it creates 
chaos and additional costs for the organization. If you ask most nurse 
managers what their biggest dissatisfaction is, it would be the lack of 
skilled, experienced and capable staff. The Family Medical Leave Act 
can add to that heavy load.
    The administrative time needed to manage this can be excessive. The 
time to track time off, paperwork, talking with physicians, coverage, 
human resource and employee health collaboration, and legal involvement 
may be extensive.

Administrative Recommendations

    Minimize ability to use intermittent leave. There was an individual 
who was out intermittently, including Dr's appointments and sick time 
for several weeks. The employee frequently called out with insufficient 
time to obtain some type of replacement. On occasion she came to work 
and left shortly after arrival, complaining that she could not work due 
to her illness, leaving no one to do the job. She also came to work and 
did not meet job expectations due to her incapacitation. This was a 
secretarial position and she was the only one with the skills to 
completely fulfill the job requirements. When she was out, work was not 
done and items were not ordered. Staff were frustrated that this key 
position was unmanned and it impacted patient care. The scenario with a 
nurse is similar; however, the impact is far greater. Consider the 
affect of several staff out on FMLA and the impact to satisfaction and 
safety on many levels.
    Reconsider intermittent leave and require a Dr's visit with each 
absence, although physicians typically meet the requests of the 
    Tighten up the definition of what constitutes ``serious illness.'' 
Originally the act was developed for things like chemotherapy 
treatments, radiation etc., now it is used for sick days. Example--A 
mother stated that she could not come to work because of the pollen and 
her child has asthma. Although it is well controlled, she said that he 
did not feel well and that the pollen count was high. The threshold of 
acceptance is on the employer rather than strict guidelines and 

Support Institutions in Managing the FMLA When Appropriate

    The FMLA is an example of understanding that health issues occur 
and that employees should not be penalized for these unforeseen events. 
However, changes to the act can be an opportunity to improve the 
balance that needs to be struck between the employer, as in the case of 
hospitals, and their needs for quality patient care and the employees 
who provide it.

    The Chairman. Thank you.
    Mr. Lancaster?

                   MANUFACTURING, DETROIT, MI

    Mr. Lancaster. American Axle Manufacturing is a Tier 1 
automotive supplier in the global automotive industry, which is 
undergoing a structural change caused by global competition, 
our customer demands for global pricing, and rising domestic 
production costs. We have 9,000 U.S. employees. All of our 
hourly associates are represented by either the UAW or the IAM. 
And on a daily basis we produce 17,000 axles, highly engineered 
products, and because of just-in-time deliveries our customers 
are dependent on us to produce those on time, every time.
    We find the FMLA, as presently existing under the 
regulations, to be a cost driver. Under our collective 
bargaining agreements, we have sick leave, personal leave, and 
also 40 hours paid, no-fault, unscheduled attendance provisions 
in there. We have found that, historically, concerns about 
serious health matters were adequately addressed in the CBA. 
What we have found is that when we layer on top of that the 
effect of the FMLA, particularly as the regulations define some 
of these terms, it allows for unscheduled absences that we 
can't adjust for in terms of running our business, so it drives 
cost, and allows people to avoid discipline under the CBA 
attendance policy.
    So we think this is a significant cost driver and is 
contributing to the loss of jobs in manufacturing and in the 
United States, as presently existing.
    [The prepared statement of Mr. Lancaster follows:]

                  Prepared Statement of Pat Lancaster


AAM's Absenteeism and FMLA Experience (1994-2005)
AAM's Collective Bargaining Agreement/FMLA Implications
FMLA as a Competitive Threat to U.S. Manufacturing
AAM FMLA Abuse Case Examples


    The U.S. automotive industry is undergoing a structural change 
caused by global competition, customer demands for global pricing and 
rising domestic production costs. One of AAM's domestic cost drivers is 
the significant increase in absenteeism caused by abuses of the Family 
Medical Leave Act (``FMLA''). In AAM's view, this abuse results from 
two primary areas of the FMLA: (1) the lack of effective guidelines 
regarding the definition of a ``serious health condition,'' and, (2) 
the intermittent leave provisions. The interplay of these two very 
broad provisions of the FMLA allow employees to routinely obtain 
certification from a medical provider relating to an underlying chronic 
condition of the employee, parent or child for intermittent (and, 
therefore, usually entirely unscheduled) leave. The threshold 
definition of a ``serious health condition'' as interpreted through the 
DOL's opinions is so low that AAM estimates that at any time, at least 
\1/3\ of all AAM employees could successfully obtain medical 
certification from a provider for an intermittent FMLA leave. In such 
circumstances, healthcare providers extend very broad certifications 
that allow employees to take leave for any reason and at any time and 
without prior notice. Thus, in the past 2 years, AAM has experienced 
exponential growth in the use of FMLA to cover tardy and ``leave 
early'' circumstances, in addition to a sharp increase in FMLA absences 
on Mondays and Fridays. These absences cannot be challenged or 
addressed through application of standard work rules or the ``no-
fault'' absenteeism procedures that have been established at our 
domestic locations. As a result, abuse of FMLA leave has become the 
single largest ``loop-hole'' for abuse of unscheduled absenteeism. 
Exacerbating this situation is the difficulty of the FMLA mechanisms to 
challenge the opinion of a medical provider.


     AAM currently operates seven (7) manufacturing facilities 
in the United States, all of which are represented by the UAW. Of those 
seven operations, five (5) of these facilities were part of the 
original asset transfer from GM. Two are located in Detroit, MI and two 
in the greater Buffalo, NY area. Historically, these four inner city 
facilities have been plagued by high absenteeism. Below are the 
composite absenteeism rates for the five facilities from 1998 through 

     Between 1998 and 2004, AAM aggressively pursued 
contractual modifications to negotiated attendance programs. These 
programs were modified with the intention of significantly reducing 
absenteeism related to ``casual'' time off--or unexcused, illness and 
excused days of absence.
     These attendance program changes have resulted in a 40 
percent drop in the rate of such casual absences, as shown by the red 
bars above.
     During this same period of time, sick leave and FMLA use 
has exploded at AAM, as shown by the growth in the blue bars.
     Absenteeism in several of our plant locations has been 
directly linked to major sporting events. In 2005, the day after the 
Superbowl, absenteeism spiked to over 30 percent total absenteeism at 
Detroit Gear & Axle, up nearly 13 percent from ``normal'' absences.
     FMLA use now accounts for 1 percent of all absenteeism at 
AAM. One percent of absenteeism is estimated to cost AAM $8.1 Million 

     In 2003, approximately 1 out of every 5 hourly employees 
at AAM applied for FMLA.
     84 percent of FMLA applications are approved, 16 percent 
of applications are denied.
     Intermittent FMLA use has climbed at a rate of increase 
five times as fast as FMLA use for continuous leaves.
     Several of AAM's local unions have conducted on-site 
classes at the union halls to ``train'' employees on the use of FMLA.
     Use of intermittent FMLA for tardiness and ``leave 
earlies'' from work has similarly exploded.

     At AAM's largest domestic manufacturing operation, Detroit 
Gear & Axle, on average in 2005, there are 110 occurrences of tardiness 
or leaving early due to FMLA per month. This is equal to approximately 
6 employees calling in unscheduled tardiness or leaving early every 
work day of the month. These events are entirely outside the plant 
rules for reporting late for work.
     A recent example of the FMLA abuse was experienced just 
this past Monday, June 20th. On Sunday night, beginning at 9:00 p.m., 
the Detroit Pistons played in an NBA finals game, which went into 
overtime and ended at 1:15 a.m. on Monday morning. At Detroit Gear & 
Axle, unscheduled FMLA activity for 3rd shift (which starts at 10:00 
p.m. on Sunday) and 1st shift (which starts at 6:30 a.m. on Monday) 
were severely impacted. Detroit Gear & Axle averages 22 call-ins on 
average for FMLA each Monday; for 3rd and 1st shift alone, on this 
date, there were 30 such call-ins.

     As shown above, AAM's experience with FMLA intermittent 
absences points to clear abuse. Intermittent FMLA absences tend to 
occur with much greater frequency on Mondays of each week, as shown by 
this data for 2005.


    AAM's collective bargaining agreements with the UAW provide 
numerous mechanisms for employees to apply for leave or time off for 
their own serious health condition or to provide care for family 
members. Below is a summary of those existing provisions:
    Sick Leave of Absence--A sick leave of absence is automatically 
granted by AAM when the employee is known to be ill and it is supported 
by satisfactory evidence. When an employee submits documentation for 
self-care under FMLA the above mentioned contractual provisions is 
negated; by law, AAM must make such leave available and is left with 
little recourse to address whether or not such illness is supported by 
satisfactory evidence.
    Informal Leave of Absence--An informal leave of absence may be 
granted for up to 30 days for personal reasons. In such case, AAM has 
the ability to evaluate the basis for the requested leave, and weigh 
this request against the needs of the business. With FMLA, no such 
ability exists for the employer to determine if the need for leave 
outweighs the needs of the company.
    Formal Personal Leave of Absence--A formal leave of absence may be 
granted for 30 days to up to 180 days. Again, AAM has the ability to 
evaluate the basis for the requested leave, and weigh this request 
against the needs of the business.
    Vacation Time Off--AAM provides for a minimum of 40 hours and up to 
200 hours of vacation time off to employees, based on seniority. Forty 
(40) hours of this entitlement can be used without pre-approval for 
absences related to illness or personal business. The remaining 
vacation balance can be used by employees on a pre-scheduled basis to 
address care issues for family members.
    Location-specific Attendance Policies--With its unions, AAM has 
negotiated successively tighter attendance policies. However, even the 
most strict attendance policy in place within AAM's domestic operations 
provides for a minimum of six (6) occurrences of either single day or 
consecutive day absences before a termination can take place (This 
description is stated in terms of a minimum because AAM's attendance 
programs vary in terms of number of steps in corrective action 
procedure and the ``removal'' period, or the period of time without 
absence that is required before the employee's record clears). These 
days are exclusive of any approved sick leave of absence, formal or 
informal leave of absence or vacation time off as described above. 
AAM's attendance policies are designed as ``no-fault'' procedures, yet 
the FMLA not only allows an employee to call-in an absence/late, but it 
gives them the ability to be off work for individual or consecutive 
days without being subject to the attendance policy. Each AAM location 
has identified FMLA as a major roadblock to their attendance programs' 


    AAM has described our experience in managing the problem of 
employee absenteeism and has further described the provisions of our 
collective bargaining agreement that provide for numerous mechanisms 
for paid and unpaid time off to address employee or a family member 
medical issues. It is AAM's view that the FMLA, as written and 
interpreted, creates significant potential for attendance abuse, 
thereby increasing the already substantial competitiveness gap that 
domestic manufacturers currently face.

                      AAM FMLA ABUSE CASE EXAMPLES

Detroit Forge--Saturday/Sunday FMLA Absences

     Employee has been certified for intermittent FMLA for care 
of her asthmatic child.
      According to AAM's contractual obligation to offer 
overtime work according to an ``equalization list'' Employee was 
offered and accepted overtime work for Saturday, June 11th. Based on 
her acceptance of overtime, other individuals on the overtime list were 
not asked to work.
     Employee called in FMLA 14 minutes prior to the start of 
shift, alleging absence due to care of daughter for asthma.
     The Employee's absence caused a shortage of manpower due 
to no absentee coverage scheduled on premium pay workdays.
     Other AAM employees voiced complaints to the union feeling 
disadvantaged by this employee having exercising her rights under the 
     Local union representatives have requested a waiver of the 
overtime equalization provisions for employees who have intermittent 
FMLA and to limit overtime availability for those employees with 
approved FMLA much like we do with employees that have medical 

Buffalo Gear & Axle--Serious Health Condition Definition Example

     Employee was attendance problem before he filed for FMLA.
     Employee was certified for FMLA intermittent leave for 
sleep apnea.
     Employee claims to have had this condition for years.
     Prior to his FMLA certification, the employee's absences 
from work were frequent, yet controlled through the absenteeism policy.
     Today, this employee is a habitual absentee problem using 
FMLA as the reason.
     No penalty in the attendance program.

Buffalo Gear & Axle--Friday/Monday Absences

     Employee certified for intermittent FMLA for ``prenatal 
care''--no unusual circumstances with the pregnancy.
     Employee has shown a pattern of Friday/Monday absences.
     AAM's ability to challenge the need for this FMLA leave is 
limited to a 2nd Medical Opinion.

Buffalo Gear & Axle--Extended Weekends

     Employee was certified for intermittent FMLA for migraine 
     AAM advised by other hourly employees that employee was 
taking trips to Florida for long weekends to visit a boyfriend.
     Employee called in for intermittent FMLA leave.
     Employee's vehicle was observed in airport parking lot.
     Employee admitted to traveling to Florida, yet claimed 
migraine headaches during trip.

Detroit Gear & Axle--Other Employment

     Two brothers working at AAM on opposite shifts, one on 
1st, one on 2nd.
     Both certified for intermittent FMLA care of mother with 
breast cancer.
     One brother, assigned to first shift, called in 
intermittent FMLA so frequently that he exhausted his 12 weeks of 
     This employee was observed working at the Best Western 
Hotel as a 2nd shift manager.
     AAM could not take action against employee working a 2nd 
job at night and calling FMLA on 1st shift, because FMLA does not 
prohibit ``moonlighting'' and employee claimed he was providing care 
for mother on 1st shift.
     Yet, brother, also on intermittent FMLA was assigned to 
AAM on 2nd shift, and should have been available to care for mother 
during days.

Detroit Gear & Axle--Out of Town

     Employee certified for intermittent FMLA for pulmonary 
     Employee called in for FMLA from a Las Vegas, Nevada phone 
     Employee was denied FMLA for those days, however, 2nd 
medical opinion confirmed her need for intermittent leave.

Detroit Gear & Axle--Lates

     Employee certified for intermittent FMLA for care of 
mother due to Alzheimer's.
     Employee late for work at least 4 times per week.
     Employee's work schedule modified to minimize impact on 
operations and accommodate her mother's illness.
     Even with an adjustment in her schedule, she cannot arrive 
to work on time.

Three Rivers--Dr. Abuses

     One employee was overheard speaking to another employee. 
``Just go to Dr__ and tell him that you are experiencing severe 
headaches. He may send you for some tests but they can't prove you are 
having them or not so he will sign the FMLA forms for you.''
     The reason the employee wanted time off was because of 
having problems finding a babysitter along with wanting a few days off 
to go to the flea market each month.
     The other employee was on intermittent leave for migraines 
and was coaching a co-worker how to get time off on FMLA.

Three Rivers--Serious Health Condition Disappeared After Exhaustion of 
                    12 Weeks of FMLA

     Employee was certified for intermittent FMLA for migraine 
     All paid vacation time was exhausted by AAM prior to 
granting unpaid FMLA.
     Employee took 2 to 3 days per week FMLA for the headaches, 
12 weeks total of FMLA time was exhausted within 7 months.
     Now that the employee would be subject to the ``no-fault'' 
attendance policy, employee is attending work regularly.

    The Chairman. Thank you.
    Ms. Alexander?


    Ms. Alexander. I am the CEO of a small company in 
California. We have about 57 employees. As everyone else has 
mentioned in a small company, it is quite tight. I have a very 
skilled work force. But what I have found is that being able to 
allocate resources and plan ahead, it has been no problem for 
us to be able to implement Family and Medical Leave and to be 
able to provide my employees the leave that they need.
    We recently had someone that left out on maternity leave. I 
was able to allow her to leave. I was able to hire a skilled 
resource and, because it was unpaid leave, her benefits were 
covered, but with the person that I was hiring in, I didn't 
have to cover his benefits. And so it was a net to my business. 
As we managed through this process, at the end I was able to 
have not only one trained employee, but another person trained 
up during that process so that, as my business grew later, I 
was able to hire the temporary employee into a full-time 
position in the company. We do have the issue of having people 
that may call in and need a short period of time off. I do have 
resource constraints as well. And while it is not life-
threatening, we do have 7-by-24 support that we have to provide 
to our customer base, so it is critical that I have the entire 
staff there. But at this point, it hasn't caused problems to my 
business. In fact, by managing it this way, it has actually 
contributed positively to my business.
    The Chairman. Thank you.
    Ms. Boyd?


    Ms. Boyd. First, I think it is important to say that it is 
not at all inconsistent to support the FMLA and to feel that 
the FMLA has been positive in many ways for employees and 
employers, but to also appreciate that the regulations are 
flawed in important ways that maybe were not intended at the 
time but, through both the regulations, wage-hour opinion 
letters, and now case law, we are in a situation where these 
regulations do need to be looked at again.
    We survey our members on a regular basis, and what we find 
is very consistent with what Mr. Lancaster discussed, and that 
is that manufacturers have three problems with the regulations. 
And again, it is important to stress that these are regulatory 
problems that were by and large created by the Department of 
Labor and are fixable by the Department of Labor without doing 
away with any important employee protections.
    The first problem frequently mentioned in every survey is 
the definition of ``serious health condition.'' I believe when 
Congress passed the statute there was a lot of discussion not 
just about the family side, which our members don't find very 
problematic, but there was discussion about health conditions 
as well. But for the most part, that discussion really did 
center around ``serious''--meaning serious--and it is a little 
distressing now, 12 years later, to see case law on hangnails. 
I don't think that is what you intended, and it certainly makes 
it more problematic to deal with the statute.
    The second problem is the intermittent leave issue that has 
been raised before. Intermittent leave has to be given to 
employees in the smallest increment that the employer keeps 
time in. For many manufacturers, that is 6 minutes. Keeping 
time in 6-minute increments is an administrative burden beyond 
belief and it causes HR departments to have to have full-time 
staff just to track time. It is particularly troubling, given 
the very tight margins in manufacturing these days, when you 
have unscheduled leave. Intermittent leave is not as 
problematic when people plan ahead and when there is an ability 
to plan ahead. Obviously, not everything can be planned ahead, 
but the unscheduled leave is very troubling.
    The third problem raised again and again are the notice 
provisions, which the U.S. Supreme Court, of course, in the 
Ragsdale case, has already overturned and told the Department 
of Labor to go back and revise that portion of the regulations 
at least.
    But there are more flaws in the notice provisions beyond 
those that were identified in the Ragsdale case. Those have to 
do, really, with the hindrances on employers' ability to figure 
out what is going on with an absence. Is it consistent that 
somebody who has chronic headaches be gone disproportionately 
on a Monday or a Friday, or after a major sporting event? Is 
that the sort of expectation, you know, based on the illness 
that you see? You don't really have a lot of ability, and of 
course further complicated by HIPAA and some other things, to 
go back and to have these discussions with doctors and 
healthcare professionals to figure out what it is the employee 
might want and to make those kinds of accommodations.
    Again, as someone else mentioned, there is probably a 
small, small percentage of the population that you have these 
particular issues with, but with very, very thin margins it 
becomes a real cost driver and is really problematic. I 
strongly believe that these are issues that can be fixed in 
very targeted ways through the regulatory process without 
harming the underlying protections of the act, which really 
have been important, I think, to American employers and 

                   Prepared Statement of Sandra Boyd

    Beginning in the fall of 2002, the NAM has regularly asked its 
members for feedback regarding the Family and Medical Leave Act (FMLA). 
The initial request in the fall of 2002 was made in anticipation of a 
January 2003 stakeholders meeting with the Department of Labor (DOL) to 
discuss FMLA regulations in light of the Supreme Court's decision in 
Ragsdale v. Wolverine World Wide, Inc., where the Court invalidated the 
penalty provision found in Section 825.700(a) of the regulations.
    Administration of the FMLA is regularly identified as the number 
one human resource challenge by NAM members. NAM members frequently 
mention their overall support for the spirit and goals of the FMLA, 
many noting that they have had robust family and medical leave 
programs--often with more generous benefits--long before the FMLA was 
passed. While 12 years later the statute itself raises few questions, 
the implementing regulations are a different story. Many NAM members 
report being frustrated by the complexity of FMLA administration and 
the ease with which it can be abused. Members note that the FMLA was 
designed to allow for family leave after the birth or adoption of a 
child or to care for seriously ill family members--and that these 
family leave absences are almost never the problem. The main source of 
problems identified by employers is with an employee's own medical 
    The inability of employers to manage FMLA absences--because of the 
way in which the regulations and DOL wage hour opinion letters have 
developed over the past decade--as they would other absences is a huge 
and costly frustration. In short, there are four major areas that are 
repeatedly mentioned by most, if not all, NAM members as problematic: 
definition of serious health conditions; intermittent leave; notice 
provisions and perfect attendance awards.
    A summary of each of these issue areas and their impact is 
discussed below:

I. Serious Health Condition

    The definition of ``serious health condition'' is regularly 
identified as the most problematic issue, with most NAM members 
agreeing that the regulations combined with DOL opinion letters on the 
subject have made almost any illness a qualifying illness. ``Serious'' 
no longer means ``serious'' as contemplated by Congress when the FMLA 
was passed. For example, one visit to a healthcare provider for a 
prescription and ``incapacity'' of more than 3 days qualifies as a 
serious health condition. While the statute may not have contemplated 
using the FMLA for common conditions like the flu and hangnails, the 
regulations have.
    Manufacturers believe--as Congress did when it passed the statute--
that the definition of ``serious health condition'' should not cover 
short-term illnesses where treatment and recovery are brief.
    The overly broad definition of ``serious health condition'' is 
particularly problematic for individuals who have ``chronic 
conditions.'' The regulations define serious health conditions as 
including chronic conditions (and the period of incapacity need not be 
3 days). Conditions such as allergies, migraines or other headaches, 
back problems, depression, asthma and diabetes are frequently 
identified as chronic conditions. Once employees have been diagnosed 
with these conditions, especially when combined with taking 
intermittent leave in short increments, the ability to manage absences 
is especially difficult.

II. Intermittent Leave

    The high incidence of unscheduled intermittent leave (combined with 
the broad definition of serious health condition) is problematic for 
manufacturers. The unpredictable nature of intermittent leave creates 
scheduling and staffing issues and leads to increased cost and lost 
    Intermittent leave must be given in the smallest increments that 
the payroll system keep time in, which, for many manufacturers, means 6 
to 10 minute increments. This creates a tremendous tracking and 
administrative burden for employers. Companies have noted that they 
have a population of employees that take their entire 12 weeks of FMLA 
leave--every year--6 minutes at a time.
    Intermittent leave for unscheduled, chronic illnesses for employees 
has not only strained production schedules but it has soured employee 
morale. Non-scheduled FMLA intermittent leave frequently means that 
employers must over staff certain shifts (such as Mondays and Fridays 
where FMLA absences tend to be greatest), ask employees to fill in for 
other workers and require unscheduled overtime. It also compromises 
product quality and employee safety.
    Some intermittent leave is anticipated and scheduled (such as 
physical therapy). This leave, even in smaller increments of time, are 
more easily dealt with because they are known ahead of time and the 
employer can make the appropriate scheduling changes.

III. Notice Requirements

    Many manufacturers have noted that the burden of leave notification 
and designation is entirely one-sided with employees having little 
responsibility to inform the company of the reason for their absence, 
the expected length of the absence, and in the case of a chronic 
condition, what an employer can reasonably expect because of the 
    The regulations further make it impossible for employers to have 
discussions and follow-ups with medical professionals about absences 
and the required forms do not give employers adequate information.

IV. Perfect Attendance Awards

    The requirement that FMLA leave not count against an employee's 
absence record for perfect attendance rewards is particularly irksome 
to manufacturers and has created morale problems for many. While 
employees who have been on leave for the birth or adoption of a child 
or for a serious medical condition should not be penalized for that 
leave, not allowing time actually at the job to count for ``perfect 
attendance'' often leads to perverse results. Some employers have 
discontinued or scaled back these awards as a result of the FMLA 
regulation and the impact on employee morale.

Impact of FMLA Regulatory Issues

    Any one of the regulatory issues raised (definition of serious 
health condition, intermittent leave and notice) might be manageable 
for employers, but taken together with the strong job protection 
provisions of the FMLA, they have created a structure that does not 
allow employers to manage FMLA absences in the same way that other 
absences can be managed.
    Because of the strong job protection provisions (which are entirely 
appropriate for those legitimately taking FMLA), employees with 
absence-related performance issues can hide behind the shield of the 
FMLA's protection to avoid discipline and termination. The notion that 
FMLA abuse problems can be managed is patently false under this 
regulatory scheme where the employers' hands are completely tied.
    Under the current FMLA regime, companies cannot initiate any 
dialogue with employees or doctors. The only way employers can work 
with an employee to accommodate a medical issue (such as a shift change 
or change in work assignments) is if the employee initiates the 
conversation with management.
    A number of manufacturers have reported the frustration (of both 
management and fellow employees) of having the same people who have 
habitual attendance issues being the biggest users of the FMLA--
everyone in the team, facility and company know who they are. Employees 
in jeopardy of severe discipline for attendance infractions seek refuge 
in the FMLA. While the percentage of employees who abuse the FMLA may 
be small, their impact on cost, productivity and employee morale is 
enormous. Such gamesmanship undermines legitimate use of the FMLA by 
those for whom the benefits and protections were truly intended.


    The FMLA has provided important protections to employees, but the 
regulatory scheme has made it impossible for employers to manage 
absences effectively. A recent NAM study found that manufacturers face 
a 22 percent cost burden--including regulatory costs--as compared to 
our major foreign competitors (www.nam.org/costs). In an environment 
where manufacturers face fierce global competition, it is imperative 
that regulations implementing laws work as Congress intended and that 
unintended consequences be addressed expeditiously.
    Modest changes to the FMLA regulation that would ensure that 
employers have the tools they need to effectively manage their 
workplaces are badly needed. Such changes will also strengthen the FMLA 
by ensuring that those entitled receive the benefits and protections of 
the FMLA. The NAM strongly encourages the Department of Labor to 
proceed with a notice and comment rulemaking on FMLA regulations and 
for Congress to support those efforts.

    The Chairman. Mr. Payne?


    Mr. Payne. Thank you, Senator, for having this hearing for 
the discussion of this issue.
    I want to echo what Laurie had said from a healthcare 
perspective. I represent not just my hospital but the American 
Society for Healthcare Human Resources Association--a mouthful, 
but it is a personal membership group of the American Hospital 
    I want to give an example of the impact of what FMLA is 
doing to every managed--critical care areas. We have two large 
hospitals in our system. Both hospitals have large OR areas, 
operating rooms. They do about 60 to 80 cases a day. The OR 
depends on a staff of one circulating nurse and two surg techs. 
If any one of those three people is missing, the surgery cannot 
go forward. And these aren't things that you can delay. These 
are surgeries that have been scheduled, some are life-
threatening surgeries.
    So first thing in the morning, if one of those three calls 
out, the nurse manager has to immediately pull someone from 
case no. 2 to fill in for case no. 1, and then case no. 2 has a 
hole. Then they have to go for case no. 5 to fill in for case 
no. 2, and so on and so on. That is expected; absences happen. 
But truly, within one of our hospitals, with a staff of about 
110 people, at one time 25 people had FMLA situations, mostly 
on an intermittent leave basis. So on a given day, the risk was 
that 25 people could call out and there was really little they 
could do about it except to scramble and cover it.
    We would like to say that, as echoed, the continuous leave 
portion is not a problem. It is plannable, it is--you can 
anticipate it and you can cover for it. It is the intermittent 
portion, plus the ``serious health condition'' definitions, 
that really cause us concern.
    [The prepared statement of Mr. Payne follows:]

                  Prepared Statement of Jeffery Payne

    The American Society for Healthcare Human Resources Administration 
. . . ASHHRA . . . appreciates the opportunity to submit our statement 
for the record on the Family Medical Leave Act and its regulations. I 
am Jeffrey Payne, director of Human Resources at Palmetto Health in 
Columbia, South Carolina, and the chairman of ASHHRA's Legislative 
    ASHHRA represents 2,900 human resource healthcare professionals who 
serve in 5,000 hospitals, healthcare systems and other health 
    Hospitals are, by their very nature, nurturing environments, filled 
with talented and dedicated people who are committed to curing and 
caring. As human resources professionals, we embrace the idea that to 
deliver high-quality, compassionate patient care, you need high-
quality, compassionate staff. We further recognize that, to attract and 
retain this kind of person to our hospitals, we need to be the kind of 
workplace that embodies the very best employment and employee-relations 
    Our workforce is predominately female in a society that still 
places primary child-rearing responsibility on the woman. We therefore 
have an obligation to recognize and respond to the needs of our 
workforce as they strive to balance their parental and domestic 
responsibilities with their professional lives.
    The Family Medical Leave Act is, at its core, a very positive and 
affirming piece of legislation that supports working men and women as 
they try to balance work and home. Even before the legislation was 
enacted, it was the policy of most healthcare organizations to provide 
ample leave time when employees had to deal with a variety of personal 
and family medical issues. In many ways, the Family Medical Leave Act 
simply codified a long-standing practice in hospitals.
    My own organization, Palmetto Health, has 9,200 employees, working 
in three member hospitals. We consistently strive to make sure our 
policies, procedures, and benefits help our employees thrive. And we 
have been successful: We are a 2005 winner of the South Carolina Family 
Friendly Workplace Awards.
    But this success does not come without challenges. There is a well-
documented national shortage of healthcare professionals in the United 
States. The U.S. Bureau of Labor Statistics projects that 1.1 million 
new and replacement nurses will be needed by 2012. We, like many 
hospitals across the Nation, are chronically in need of good people. 
For example, at any given time, we have more than 150 nurse vacancies, 
which for us equates to a vacancy rate of about 10 percent. Our 
experience is very typical, and we must do what we can to create an 
environment that attracts the best--and policies that assist employees 
in times of medical need are absolutely required.
    That being said, we have to constantly weigh what we would like to 
do versus what we are able to do. We have to take a hard look at our 
staffing practices to ensure that we are able to meet patient demand. 
At the same time, we must be effective stewards of limited healthcare 
resources. After all, we are constantly ``on'' . . . our lights never 
go out . . . our buildings never go quiet. We function 24 hours a day, 
7 days a week, 365 days a year. And the nature of our work demands that 
we provide a constant presence. The people we serve need us to be there 
to take care of them during the most critical and vulnerable moments of 
their lives.
    While we agree with its general goal, the implementation of the 
Family Medical Leave Act, as it is currently interpreted, is often 
frustrating and difficult. Frankly, in many cases implementation of the 
act is making matters worse for our employees and our patients as well. 
We strongly support the primary provision--allowing employees to take 
time off for consecutive weeks to deal with medical emergencies such as 
pregnancy and surgery. That is straightforward, and easy to deal with 
administratively. However, the intermittent leave provisions, and the 
current definition of serious health conditions are other matters 
    Quite simply, in a 24/7 work environment, the unpredictable and 
burdensome nature of the regulations can wreak havoc on employee staff 
scheduling. The result often hurts our ability to schedule patients and 
treatments. Also, the administrative burden of managing intermittent 
leave is significant. As an example: In my hospital, we have a staff of 
four full-time benefit counselors whose jobs are to advise our 
employees on a full range of benefit issues, typically having to do 
with health insurance. In reality, they spend the bulk of their time 
dealing with Family Medical Leave Act administration . . . 
communicating with the employees, supervisors, physicians and others 
about the intricacies of the act.
    We urge Congress to work with the Department of Labor to refine the 
current regulations so that they are closer to the original intent of 
the Family and Medical Leave Act--to codify what many hospitals and 
healthcare providers have long provided for their employees in regards 
to balancing work and home life and medical leave. We believe that such 
refinements would better reflect the real world environment of today's 
hospital: a place that, despite often-shrinking resources, remains 
available every day of every week to meet ever-increasing demands for 
healthcare services. We don't need more red tape and regulation.
    Mr. Chairman, we thank you for the opportunity to be here and we 
look forward to working with you in improving this valuable law.

    The Chairman. Thank you.
    Dr. Heymann?


    Dr. Heymann. Thank you. I want to speak both as a physician 
trained as a pediatrician and as a policy analyst who for the 
past 12 years has led a research team at Harvard to examine the 
health, development, and well-being of families. We have done 
systematic studies of over 10,000 Americans from every State, 
every income level. We have also interviewed employers, 
childcare providers, healthcare workers.
    First, the FMLA as a whole, I think the single thing I 
could say is it is one of the most important pieces of 
legislation in the past 25 years when it comes to health. There 
seems to be broad agreement of that. And because of the time, I 
am just going to briefly say critical to health of children, 
infants, the ability to take leave long enough that mothers are 
home for breast feeding cuts mortality substantially. Caring 
for sick children decreases the duration of their 
hospitalization, improves their health much more rapidly on a 
wide range of indicators.
    It is also important to our labor outcomes. Before the 
leave, adults with health problems were 53 percent more likely 
to lose jobs. Low-wage workers whose children had health 
problems were 36 percent more likely. This is a central issue 
to their ability to stay at work.
    So we have a lot of agreement that the FMLA is important. 
What makes it work? And I think here is where I would have 
something slightly different to say. I think that the current 
legislation and regulations are smart. They work for the health 
of Americans and for work places. Two points in particular: The 
definition of ``serious conditions,'' we need to understand 
that there is less and less hospitalization, that as much as 
possible people are now treated on an outpatient basis, that 
hospitalizations themselves are decreasing in length 
dramatically. The law covers this now well. It is important 
that we continue that coverage.
    Chronic conditions are on the rise. That is the majority of 
what is affecting Americans now. Again, it covers it well. It 
is critical that that stay.
    In terms of intermittent leave, many doctors visits, 
medical tests can be done in short visits. Allowing the 
smallest increment possible, the companies already keep track 
of. Not asking them to keep track of something smaller than 
they do but what they already keep track of is essential. Why? 
Because it allows the worker to miss as little work as 
possible, allows them to lose the minimum amount of pay, the 
employer to lose the minimum amount of time while meeting these 
health needs. Many appointments can be scheduled at the end of 
the day, the beginning of the day. That short amount of time is 
    I want to say two things quickly in response to a number of 
points that have been raised. One, the cost to firms. I think 
it is important to note that there have been national surveys 
by the Government of companies across the whole country, 
representative surveys. What did they find? Ninety percent of 
covered establishments found that the FMLA had either no effect 
or a positive effect on profitability and no effect or a 
positive effect on growth.
    The last thing I want to say is about the healthcare 
setting, because that has been raised now by a couple of 
people. I think the essential point is we need healthy doctors 
and healthy nurses caring for patients. The last thing we need, 
I can say as somebody who has worked in hospitals, worked in 
clinical care, is somebody who is sick delivering that care. We 
see this in other industries as well. This has come up with 
food workers. The last thing we need is sick food workers going 
and spreading disease, and it has been shown.
    In the past, it was used to justify the extremely long 
hours of residence--you know, 80, 100 hours-plus--that we 
needed somebody there to deliver care. But in fact, what was 
found was they were delivering bad care because they were so 
sleep-deprived. There is a complete parallel here. People who 
are sick, people whose parents and children are home seriously 
ill, are not able to give good care. They are not well enough, 
they are not focused enough on their work. We need to have the 
flexibility in the system so that they can be covered. That is 
essential, just as we have to cover epidemics, other 
emergencies that raise the amount. But we need somebody who is 
good on staff, and that allowance for leave is the way to keep 
them at work when they are able.

            Prepared Statement of Jody Heymann, M.D., Ph.D.

    Good morning Chairman Enzi, Senator Kennedy, and members of the 
committee. My name is Jody Heymann. I am on the faculty of the Harvard 
School of Public Health and Harvard Medical School. Thank you for 
inviting me to testify today. For the past 12 years, I have led a 
research team at Harvard University that examines how conditions in the 
United States are affecting the health, development, and well-being of 
children and families. Trained as a pediatrician and a policy analyst, 
I began this work when it became clear from individual families that 
the conditions parents faced in the workplace and in their communities 
were having a dramatic effect on the health of their children. In the 
past dozen years, I have conducted systematic studies involving over 
10,000 Americans--from every State and across all income and 
demographic groups--to examine how widespread these problems are and 
what are the viable solutions.
    You have asked each of us at this Roundtable to speak about our 
experience with the FMLA, ways family and medical leave might be 
improved in the United States, and what could be done to improve the 
lives of working families in America. I will address these in turn 
beginning with the FMLA.
    As a physician and medical researcher, I want to first state that 
the FMLA is one of the most important pieces of legislation passed in 
the United States in the past 25 years when it comes to family health. 
Its current weaknesses consist primarily of the fact that it does not 
cover an estimated 40 percent of Americans and the fact that the leave 
is currently unpaid and thus practically unaffordable to too many of 
the 60 percent who are theoretically covered.

                     CURRENT STRENGTHS OF THE FMLA

    The tremendous importance of family and medical leave grow out of 
its impact both on health and on the economic well-being of those who 
receive it. The health benefits are many. Just to cite a few of these: 
Women who are able to take maternity leave are more likely to be able 
to breastfeed for an extended period of time, and breastfeeding cuts 
infant mortality to a third of what it would otherwise be. The benefits 
persist throughout childhood and adolescence. Many studies conducted 
over the course of decades have demonstrated the importance of parents' 
involvement when their children are sick. When their parents are 
present, sick children have better vital signs and fewer symptoms; they 
recover more rapidly from illnesses and injuries. Furthermore, the 
presence of parents can shorten children's hospital stays by a third.
    Similarly, elderly Americans who receive support from family 
members when sick have far better outcomes. Adults who receive support 
from family members when sick have substantially better health outcomes 
from such major conditions as heart attacks and strokes.
    When working adults receive leave to stay home when they are sick, 
they are more likely to be able to care for themselves, to recover more 
rapidly and less likely to spread diseases to those they work with.
    Addressing the interface between work and health is also essential 
to meeting the basic economic needs of Americans. In a national study 
of low-income mothers, we found that those who had health problems were 
53 percent more likely to suffer job loss and those who cared for 
children with health problems were 36 percent more likely to suffer job 
loss. The FMLA with its guarantee of job-protected leave to care for 
one's own and family illness is an essential part of addressing this 
    There are a number of important features of the FMLA in its current 
implementation, but it is worth mentioning at least two. First, the 
definition of serious condition has importantly been defined as 
including more than hospitalizations. Healthcare providers now provide 
less and less care in hospitals in order to save money. Many serious 
conditions are cared for at home. Moreover, it has been important that 
the regulations ensure that the FMLA covers serious conditions of 
relatively short duration. Today, when Americans are hospitalized it is 
generally for a short period of time. The average hospital stay has 
decreased from 8 days in 1970 to 5 days in 2001. The average hospital 
stay for adults with heart disease, clearly a serious condition, is 
only 4.6 days. Finally, it has been essential to the effectiveness of 
the FMLA that the definition of serious condition includes chronic 
conditions. The importance of chronic conditions is increasing as 
Americans survive more diseases that were once fatal.
    A second essential part of the effective implementation of the FMLA 
has been the ability of Americans to take short-term intermittent leave 
as well as longer-term continuous leave. Many medical tests, 
treatments, and doctor's appointments require only short visits. By 
allowing leave to be taken in small increments, the current regulations 
enable employees to meet their own health needs and that of their 
family while minimizing the time lost to the employer and minimizing 
the pay loss to the employee.

                     HOW CAN THE FMLA BE IMPROVED?

    Two things could be done to improve the FMLA. First, the actual and 
effective coverage needs to be increased. The majority of working 
Americans--across race, ethnicity, gender, education, and income--are 
caring for children, elderly parents, or disabled family members. The 
fact that approximately 40 percent of Americans are not covered by the 
FMLA has been recognized and is an enormously serious problem. Less 
well recognized is the fact that many Americans are not aware of the 
leave they could receive under the FMLA. Two mothers I interviewed 
illustrate this point. Both had children with asthma but neither 
realized the Family and Medical Leave Act covered their children's 
serious chronic condition. As a result, one child was unnecessarily 
hospitalized when her mother went to work fearing she would otherwise 
lose her job and her family would be left destitute. And the other 
mother did lose her job when she sought to care for her child during a 
hospitalization. They represent only two of the millions of Americans 
who don't realize they are covered by the FMLA or what kinds of serious 
conditions are covered. Both educating Americans who are already 
covered by the FMLA about their rights under the law and extending the 
act to as many as possible of the approximately 40 percent of Americans 
who are not covered are critically important.
    The second major recommendation I have for improving implementation 
of the FMLA is to develop ways to ensure that the leave is paid. 
Currently, the leading reason Americans do not take family medical 
leave is that they are not able to afford it. A national study found 78 
percent of Americans could not afford to take the family and medical 
leave they needed. Not only is paid leave crucial to enabling a 
majority of Americans to receive the health benefits derived from full 
access to leave, but it is essential to the short- and long-term 
economic security of American families. The entire family benefits from 
parents' increased job security and consistent income. Implementing 
paid parental leave policies also provides economic returns to 
employers. Research has shown that having access to paid leave improves 
workers' performance on the job. Workplaces with paid parental leave 
policies experience lower job turnover rates, leading to lower 
recruitment and training costs and a higher level of productivity. 
Workers in more supportive workplaces are likely to have higher levels 
of job satisfaction that, in turn, increase their commitment to their 
company's success.
    The overwhelming majority of countries from around the world 
already have paid parental leave of some form. Our study, The Work, 
Family, and Equity Index: Where Does the United States Stand Globally?, 
examines U.S. labor and family policy in a global context. In the case 
of maternity leave, we studied policies in 168 countries. One hundred 
and sixty-four of these offer paid leave to new mothers. This includes 
countries in every region of the world, countries with low unemployment 
and countries with high productivity. Ninety countries offer 14 or more 
weeks of paid leave to new mothers. Ninety-nine of the countries which 
guarantee paid maternity or parental leave for women provide 100 
percent wage replacement for at least some portion of this leave. The 
United States is the only industrialized country not to guarantee paid 
leave to new mothers. Of the 168 Nations studied, the only other 
countries we found not to have paid leave for mothers were Papua New 
Guinea, Swaziland, and Lesotho. While not universal, paid leave for new 
fathers is also widespread. Forty-five countries offer some form of 
paid leave to fathers (parental and/or paternity); 27 of these 
countries offer at least 14 weeks of paid leave to men. Clearly the 
United States can afford to join so many other Nations around the world 
in providing these essential benefits.


    While the FMLA provides important coverage for major illnesses, 
there are crucial health needs which are not covered by the FMLA such 
as when a 2 year old needs a parent to stay home with her because she 
has a 104 degree fever or a restaurant worker should stay home because 
he has infectious diarrhea. Because providing for 7 days a year of paid 
sick leave when needed for personal and family illness would make an 
enormous difference to the health of American families and their 
ability to keep their jobs, I hope this committee will hold hearings on 
the Healthy Families Act which was first introduced last year.
    This bill fills a desperate need for Americans. Recent studies have 
revealed that 59 million American workers do not have a single day of 
paid sick leave and 86 million do not have any paid sick days that can 
be used to care for a child. Short-term paid sick leave is critical to 
the health of American working adults, their children, and elderly 
parents for several reasons. First, as noted previously, one of the 
largest factors affecting children's health is whether their parents 
can be involved in their care. When parents are involved in children's 
care, they have better health outcomes from both acute and chronic 
diseases, and their healthcare costs are lower because they spend less 
time in the hospital. Moreover, the single biggest determinant of 
whether working parents can care for their sick children is having paid 
leave. Parents with paid leave are five times as likely to be able to 
stay home with a sick child. Second, having leave to care for family 
members is equally important to those caring for elderly parents or 
sick or disabled adult family members. Third, having paid leave to 
address one's own health needs makes a difference to the health and 
welfare of all Americans. Those adults who have paid leave are 
significantly more likely to be able to keep their jobs and return to 
work after major illnesses. This is particularly important given that 
personal and family health problems are a leading cause of job loss. 
Our research has shown that workers with paid leave are 2.6 times more 
likely to return to work after a heart attack or angina. Moreover, 
short-term paid sick leave matters to employers because of the 
important ways in which short-term paid leave can limit the spread of 
infectious diseases in the workplace, improve productivity and decrease 
unnecessary absenteeism. To provide just one example, the spread of 
infectious disease at the workplace is the reason that the United 
States Centers for Disease Control and Prevention recommended Americans 
who have influenza--a disease that leads to 95,000 hospitalizations and 
over 35,000 deaths in an average year--stay home when they are sick.
    The Healthy Families Act is superbly constructed to meet the 
essential health needs of working Americans and their families, at the 
same time as being readily achievable. As we report in our global 
study, The Work, Family, and Equity Index: Where Does the United States 
Stand Globally?, 139 countries around the world provide paid sick leave 
to employees. One hundred and sixteen countries provide paid leave for 
10 or more days. Can the United States afford to provide sick leave 
benefits and still compete in the global economy? The answer is clearly 
yes. Most of the world already has legislation guaranteeing sick leave. 
Will it make a difference to the health of American children and adults 
alike in need of care? An enormous one.


    In conclusion, the United States currently lags dramatically behind 
all high-income countries, as well as many middle-and low-income 
countries when it comes to public policies designed to guarantee that 
working families can care for their families' health and development. 
One hundred and sixty-four countries around the world guarantee paid 
leave to women after childbirth; the United States does not. Forty-five 
countries ensure that fathers either receive paid paternity leave or 
paid parental leave; the United States does not. One-hundred thirty-
nine countries provide paid leave for short or long-term illnesses; the 
United States has no national policy regarding sick leave.
    While it is essential to the well-being of middle-income families 
that solutions--including ensuring adequate working conditions for 
Americans and their families--be universal, developing policy responses 
is even more critical to the health and well-being of those in greatest 
need--low-income families and families with a child or adult with a 
serious health condition.
    Thank you again for holding these hearings and for taking the time 
to move forward on these critically important issues facing working 
American families.

    The Chairman. Thank you.
    Dr. Mulvey?


    Ms. Mulvey. Thank you for inviting me here today on this 
important issue. I would like to share with you some results of 
a recent survey that the Employment Policy Foundation did on 
the costs and characteristics of family leave. This is 
important because many of the Government surveys that were done 
were over 5 years ago. So this is more up-to-date data.
    We found that, on average, 14.5 percent of employees took 
FMLA leave during the past year. And I will echo what people 
have said here. FMLA is a very valuable benefit, but one of the 
concerns that have been raised with FMLA is in the area of 
unscheduled intermittent leave. We found that intermittent 
leave is common among FMLA leave-takers, with 20 percent taking 
1 day or less and 30 percent taking 5 days or less. But more 
importantly, nearly 50 percent of all leave-takers do not 
provide notice the day before leave is taken. This lack of 
notice makes it difficult for employers to adjust their other 
employees' work schedules and accommodate the unscheduled 
absence, leading to lost productivity, lost income, and other 
    Our survey also found that chronic health conditions 
accounted for 27 percent of leave-takers. This was much higher 
for certain industries--58 percent for transportation and 42 
percent for telecommunications. There was some concern that 
workers are using FMLA for chronic health conditions that may 
not be serious health conditions.
    In terms of cost, we estimate that FMLA costs employers $21 
billion a year. We believe this is truly a conservative 
estimate and does not include the administrative burden of 
tracking and complying with FMLA rules, nor does it include the 
secondary economic effects of declining profitability on 
economic activity. For some industries, this equals 2.5 to 3.5 
percent of their compensation costs. At a time when employers 
are already facing ever-rising healthcare costs and mounting 
pension expenses, these costs can be quite burdensome.
    Thank you.
    The Chairman. Thank you.
    Ms. Philips?

                    BENEFICIARY, ATLANTA, GA

    Ms. Philips. First of all, I would like to say thank you 
for giving me the opportunity to be here today. My name is 
Patti Philips. I am a working mother from Atlanta, Georgia. I 
work in a manufacturing plant of a large soft drink company. I 
have three daughters. And I was a beneficiary of FMLA. It was a 
godsend for my family.
    In 1999, when my youngest daughter was 12, she was 
diagnosed with bone cancer. For 6 years, Stephanie fought. And 
FMLA meant to me that I was able to be there for Stephanie. We 
couldn't afford for me to not work; we needed both incomes. And 
more important than that, I was the insurance carrier. The 
costs were astronomical for what Stephanie went through, and 
there is no way that she could have gotten the quality care she 
got without our insurance. So I had no choice.
    I used FMLA, and the most important part of FMLA to me was 
the intermittent leave, with all the different doctors, all the 
different treatments she had to go through. Some of them, 
radiation, only would take 5 minutes at a time. So I was able 
to use the intermittent leave and spend as much time as 
possible with Stephanie, which was important to me.
    Last August, when Stephanie's cancer came back for the 
third time, we were told she was terminal. There was nothing 
else they could do. Again, we started--I used the intermittent 
leave again. We had palliative radiation. That was all we could 
do for her was to make her as comfortable as possible. I was 
able to just use small increments of time to be with her, and 
when she didn't need me, I was able to go to work. When I was 
at work, I was able to focus on my work and be a good, quality 
employee. When I was at home, I was able to focus on her.
    After Christmas, we realized it was time for me to stay 
home. Stephanie didn't have much longer. Because I had been 
able to use the intermittent leave, I had enough time left that 
I was there with her the last 2 months of her life. She passed 
away on February 8th. I was able to be with her 24/7. We 
created wonderful memories, something that I will always have 
because my daughter is no longer with me. And I want to thank 
you for FMLA.
    Thank you.
    The Chairman. Thank you.
    [The prepared statement of Ms. Philips follows:]

                  Prepared Statement of Patti Phillips

    Good morning, Chairman Enzi, Senator Kennedy, and members of the 
committee. My name is Patti Phillips. I am here to share my experience 
with the FMLA as a mother, committed employee, and as a family 
breadwinner. I am also here to share this story for my daughter, 
    Six years ago, on New Years Eve, Stephanie felt a pain in her leg 
that wouldn't go away. Testing revealed it was a type of cancer called 
Ewing's Sarcoma. She was 12 years old, and she had cancer. That first 
year, she had chemotherapy, radiation, and surgery, all in 1 year. She 
was so brave, but it was brutal--brutal for her and agonizing for me, 
my husband, and our other two daughters, Shannon and Paige. But we made 
it through, and we were so thrilled because we thought we'd beat the 
    For 2 years, Stephanie was fine. And then a spot reappeared in the 
same place in her pelvis. In August of 2003, she had major surgery. The 
doctors took out the left side of her pelvis as well as other bones, 
and put in metal replacements. Again she seemed to be doing fine. Then, 
in August of last year, she felt a pain in her leg. Tests showed the 
cancer was back. This time, it had spread to her right leg and her 
right lung.
    I have worked for a soft drink company as an inventory control 
specialist for 13 years and was eligible for FMLA. The first time, when 
Stephanie was first diagnosed and receiving treatment, I didn't take 
FMLA leave. FMLA is unpaid and our family needed my paycheck. I didn't 
know what was ahead.
    Through that year of chemo, radiation, surgery, and everything, my 
husband and I struggled to care for her. I managed to be with her 
outside of work hours. I still put in a full week at work, but my 
supervisor arranged for me to start my day later, so I could be with 
her in the morning, and I would work later at night.
    But, Stephanie was alone a lot. I used to cry all the way to work. 
I hated leaving her. The second time, when she relapsed, I promised 
her, ``I will never leave you alone again.''
    I immediately signed up for FMLA leave and I used it. If I could 
have spent every second with her, I would have. But I couldn't because 
my husband lost his job and wasn't able to find another. We depended on 
my income and health insurance. Having FMLA leave meant that, when 
Stephanie needed me, I could be there for her. Because FMLA allowed me 
to take leave in small increments, when she didn't need me, I was able 
to be at work and bring in steady income.
    On February 8th of this year, at 4:30 in the morning, after a 
restless night, Steph told her Dad and me that she was going to go try 
to get a little more sleep. She tucked her blanket under her chin and 
lay back down. For some reason, both her father and I woke up, 
together, exactly an hour later. We took one look at Steph and knew she 
was gone.
    I miss Steph every day. But I take some comfort in the fact that I 
was there with her as she struggled with the pain and the treatments. I 
was part of her medical treatments and her care. I was with her at the 
end. We were with her. She wasn't alone.
    The FMLA was a godsend.
    Keeping my job meant that I was able to retain my health insurance. 
The FMLA protected my job and my family's health insurance. I don't 
know how Stephanie would have gotten the care she needed without health 
    Still, even with the insurance, our bills were astronomical. 
Without it, we would have lost the house, no question. We would have 
lost everything. FMLA was the only thing between us and bankruptcy. I 
saw people who ended up bankrupt. When your child has cancer, you start 
a kind of terrible journey. And on the way, you meet a lot of other 
families, traveling in this same kind of twilight world.
    Many of these families had it harder than us because they didn't 
have the benefits of FMLA leave. They were confronting the tragedy of 
serious or terminal illness, and on top of that, they had lost their 
jobs and health insurance. They didn't know how they were going to pay 
their bills. They just had no money. In that one way, we were lucky.
    When I heard that the FMLA might be scaled back, I just couldn't 
believe it. That law was the only thing between my family and the 
street! I am particularly disturbed about the proposal that would force 
people to take leaves of a half-day at a time. I saved every bit of 
FMLA leave I could. If I had to be gone for only 2 hours--and often 
that's all I needed--I could take 2 hours and head back to work right 
after. If I'd had to take half-days every time--time when Stephanie 
didn't need me, time I wasn't being paid for--that would have been 
devastating. I would have had to use up my FMLA leave too fast. I would 
not have had any time left at the end of her life.
    There are already a lot of people out there who aren't covered by 
the FMLA. I've seen what happens to these families, and I don't think 
we should be talking about making it so that even more people aren't 
protected by the law.
    I participated in this Roundtable for Stephanie. I also want to 
help other families.
    Thank you for the FMLA. Thank you for allowing me to spend time 
with my daughter and not worry about losing my job. It meant the world 
to me and Stephanie.
    I know it will mean just as much to someone else, too. Please don't 
hurt other families who need the FMLA's vital protections. I am hopeful 
that other families will have the same options that I had. Thank you.

    Dr. Barbanel?


    Dr. Barbanel. Hi. I wanted to let you know that I am very 
much appreciative of being here today. And in addition to 
working as chief of occupational and environmental medicine at 
Boston Medical Center at Boston University, I am actually here 
representing the American College of Occupational and 
Environmental Medicine, and I am president of that 
    The Family and Medical Leave Act serves a very noble 
purpose, as we know. I won't go into the details on that. But 
we also know there is abuse of the Family and Medical Leave Act 
by employers, employees, and physicians. In most cases, FMLA 
leave is temporary and employees get back to work. The problem 
with FMLA is the other times, when employees often, with 
intermittent leave and diagnoses that are chronic, such as 
migraine headache, for instance, or stress, take time off for 
other reasons and end up maintaining the sick roll for long 
periods of time, often indefinitely, contrary to the 
individual's own mental state and benefit.
    Employees are allowed to misuse FMLA, especially 
intermittent leave, and miss work without consequences as a 
result of physicians being too compliant with writing excuses 
in some situations. Such a misuse is contrary to the employee's 
own functionality both at home and at work. We know in 
occupational medicine and from workers compensation that the 
longer the employee is out of work, the more likely the 
employee is to never return to work, often with a loss of job 
and economic stability. The employer has no opportunity to 
manage the employee's absence. In ADA, you are allowed to give 
people light duty who are somewhat compromised but can still do 
the job, but in FMLA that is totally at the discretion of the 
    The employer also has no way to intervene to direct the 
patient's care. Many large employers have physicians who are 
able to identify expert medical care for employees. And rather 
than them running to get notes that are for other excuses, 
their stress or their psychiatric problems could be better 
addressed if physicians by the employer were able to direct 
their care and help with their care.
    The Chairman. Thank you.
    Ms. O'Flaherty?


    Ms. O'Flaherty. Hi. Thank you for having me here. I work 
for JP Morgan Chase and I manage the Family and Medical Leave 
for 144,000 employees. It is a wonderful thing that we have, 
and we work well with our employees to do it. When it comes to 
family and medical leave, we--I am in both those sides of the 
world. I have my feet in both ends. We help the employees to 
get the family medical leave they need, teach them how to use 
it. We also work with the employers, we teach the managers of 
these employees how to work through the issues with the 
    On both sides we have issues. I have assisted personally 
with somebody who was trying to get family medical leave to 
help take care of her sick mother. Both her and her sister are 
employees. And what happened is the physician refused to sign 
the paperwork, and the discussion--they called us because they 
will call us with issues to assist them. And so I ended up 
calling this physician and for 45 minutes discussing family 
medical leave and you need to fill it out, it is her job 
protection. She did so under duress, saying, ``Well, I'll do it 
this time.''
    On the other aspect, we will talk to managers and say, 
``no, you can't do this or, you know, you can't talk against 
the employee for this.'' And we will work with managers in both 
    But we also have employees who have family medical leave. 
Intermittent is the one we hear the most problems with, not 
when somebody is out to take care of somebody for a long time. 
We hear the issues about intermittent. But again, it is not all 
intermittent. We will have employees that call and say to us, I 
have intermittent for my family member and I use it 
appropriately; however, I hear people talking in the 
cafeteria--and everybody talks even though you are not supposed 
to discuss issues, they will be talking about it. And they hear 
them saying, hey, I have a way to do this. If you need a day 
off, use your FMLA. And she said, I personally am offended 
because I use it when I need it for my mother. But I hear other 
people that don't.
    And we have a very hard way to get around and grab these 
people that are abusing it. And like we talked about, it is a 
wonderful thing; intermittent is wonderful. And for 95 percent 
of people who use it, it is appropriate. But it is that 5 
percent that makes the biggest noise for companies, for 
employers, for the managers. How do we get around that and be 
able to tie that down to help everybody work with it?
    [The prepared statement of Ms. O'Flaherty follows:]

                 Prepared Statement of Susan O'Flaherty

    Thank you for allowing me to participate in the Roundtable on the 
Family Medical Leave Act on June 23, 2005. My name is Susan O'Flaherty 
and I am Vice President of Disability Management for JP MorganChase.
    I oversee the STD and FMLA administration for our over 140,000 U.S. 
based employees. In this capacity, we work with both the employees 
applying for FMLA and their managers and human resource business 
partners. We assist the employees in attempting to apply for the leave. 
For instance, I spent 45 minutes on the phone with the physician to 
convince her to fill out the paperwork for two sisters who are employed 
by JPMorganChase. Their mother was acutely ill and they needed 
intermittent family leave to assist her. The physician was refusing to 
fill out the paperwork for them. The physician was the mother's doctor 
and wouldn't fill out the forms because it was for the employees' FMLA 
leave. I explained the ramifications and the doctor did agree to fill 
out the forms and the sisters received their needed FMLA for their 
mother. We educate the employees and managers on FMLA.
    FMLA provides important assistance to employees dealing with family 
and medical issues that may arise. It provides employees the ability to 
care for themselves or family members during a difficult period without 
fear of losing their job due to these circumstances. I do not hear 
complaints from managers around the continuous leave, such as caring 
for an ill parent, newborn care, etc. Even though it may be up to 12 
weeks, they can manage and plan for the absence in these crises. The 
majority of difficulty and problems occur around the unscheduled 
intermittent leave.
    The basic intention of intermittent leave is a good idea. With 
chronic conditions, there may be no warning or no need to see a 
physician for care of every episode of illness. The inherent problems 
with intermittent leave are that the definition of serious health 
condition is not well defined and lends to interpretation. The fact 
that a serious health condition can be defined by one visit to a 
physician and a prescription being given is too vague. You can 
literally go to a physician for acne, being given a prescription and be 
covered. This is because physician does not have to give a diagnosis 
for the leave.
    We understand that employees may need to leave early or come in 
late due to a health issue for themselves or a family member. When 
employees inappropriately use this time it can be devastating to the 
morale and productivity of a work group. We have many employees who use 
up all their FMLA time to the minute. They know exactly the day and 
amount of time that they regain and on that exact day it rolls back in 
they automatically use that time again. This goes on year after year. 
One of the staff was explaining to someone their FMLA rights and the 
person came back to say, ``I know I am entitled to 12 weeks off within 
a year, and I make sure that I use it every year since it is due me.''
    There is a unit that has a 10-minute waiver period on tardiness. 
This means that if they come in within 10 minutes of their designated 
start time it is not counted against them. There is an instance where 
an employee was seen by another employee driving into the parking lot, 
she looked at her watch and was over 10 minutes late. She picked up her 
cell phone called into her manager and said she was going to take an 
FMLA day for her migraines. She drove off.
    Another common problem is the employees who request a vacation day. 
Sometimes the manager cannot give it due to so many people already are 
out that day. The day comes and the person calls in as a FMLA day.
    The majority of FMLA absences are appropriate and are used by the 
employees to assist them in dealing with issues that arise. The fact 
remains that the 5-10 percent that are inappropriate can be 
counterproductive in a business and lend to morale and productivity 
    I had an employee call once and just wanted to vent. She wouldn't 
give names but just wanted to tell someone. She said that she used 
intermittent FMLA and it was a ``Godsend'' for her to assist her 
elderly mother. She said that she only used it when she really needed 
it and was thankful for it. She said that it bothered her when she was 
in a lunchroom or bathroom and heard people talking about FMLA. They 
were saying that FMLA covers just about anything and you can get your 
doctor to write it so you can have off whenever you want to be off. You 
just call in and say it is FMLA and you can leave whenever you want. 
She said this offended her, as it reflects badly on the whole idea of 
    We need a way to address the people who abuse it. Their co-workers 
take on the added burden. Their teammates may need FMLA for an 
appropriate reason and it affects morale when others abuse FMLA. We 
need to have some way to make sure that those who abuse it don't affect 
those who truly are in need. Just because it is only 5-10 percent 
doesn't mean we should just ignore the inappropriate use and let it go 
on without consequences.
    In conclusion, FMLA is a valuable resource to achieve a work/life 
balance and assist people with getting through difficult times. We need 
to address vague and obtuse definitions and have some definite 
parameters and guidelines for legitimate use. It should be available to 
those employees who truly need it, but not inappropriately used just 
for the sake of being off 12 weeks a year. We truly want a work/life 
balance, and a balance that is equal. To achieve this we need better 
definitions of what is covered under intermittent FMLA that are 
supportive of the employee's life outside of work and the sudden 
emergencies or issues that may require their time away from work; but 
we also need to have measures that are supportive of the work 
environment and the ability of managers and businesses to continue 
being productive. Thank you.

    The Chairman. Thank you.
    Normally, we would have an opportunity for a little bit of 
interchange at this point. But on the schedule that we are on, 
we won't be allowed under our time constraints to cover all the 
questions if we do that. So what I am going to do is combine 
the next two questions.
    The remarks you have just given are akin to opening 
statements. I will remind you again that you can expand on any 
of the remarks you would have liked to have made or--I know 
that some of you have your cards up. If you have some things 
that you want to put in in response to things that other people 
have said, we will accept those for the record. And we want 
that information. We need that information. So if you would put 
that in writing--and I know that is a little bit more 
    And of course I would remind you that, by volunteering to 
be on this panel, which we greatly appreciate, one of the 
things that we hope that you will do is allow written questions 
to be submitted to you, too, because sometimes we will need a 
little bit more clarification on something that you have said. 
So when we quit today, we will leave the record open for 
another 10 days, which will allow you to expand on your 
remarks, but it will also allow members of the committee to ask 
some additional questions based on what you have said or, just 
because of your background, some things that might help us--
some things that we might want to convey to the Department. So 
that is some of the uses that are made of this and why we 
expand it to a lot more people than we would normally be able 
to do at a hearing.
    So I appreciate your cooperation on it. We will combine the 
two remaining questions so that we have time to get to any 
parts of that that you might want to comment on. And if you 
will keep your answers short, then we will be able to have, 
hopefully, some back-and-forth on this after we finish with as 
many people who would like to comment on it.
    And you don't have to comment on everything. That is okay, 
too. I know that we invited you here because you are all 
experts in your area. I can tell from the comments that we have 
already had that there is some very diverse background here, 
some definite different viewpoints, and that is all very 
helpful. So I appreciate your participation.
    The two remaining questions are--and again, I will mention 
that these three questions are ones that Senator Kennedy and I 
mutually agreed on to see how much information we could bring 
out to help us to understand and the Department to understand 
and see if anything can be done to improve it in any direction.
    So the two remaining questions are, are there ways in which 
the implementation of the act might be improved? I know we have 
gotten into a little bit of that already.
    And, given the importance of maintaining a work-life 
balance for all Americans, what do you believe are the most 
reasonable options to achieve the desired balance?
    Since you raised your cards while I had my head down, it 
makes it difficult. But I know Ms. Boyd had her card up kind of 
as a response last time, so we will start with her while I sort 
this out and see how well my staff did.
    Ms. Boyd. Thank you, Senator. Yes, the National Association 
of Manufacturers strongly supports the Department of Labor 
moving forward to look at the regulations, as they have 
indicated they may do in their regulatory agenda. We think 
that, as we have discussed, in three areas--``serious health 
condition,'' intermittent leave, and notice--that those are 
three areas--and nobody should be surprised that 10 years later 
we find flaws with regulations. That is why regulators go back 
and look and see how things are working and go back and ask for 
comment and redo them--the time is right now to do that again. 
And I suspect other panelists will want to talk about 
expansion, but that expansion on a currently flawed framework 
is a recipe for disaster. We need to fix those underlying 
regulations before we can have any discussions about other 
benefits that the act in the future may give to employees.
    With respect to the third question, on work-life balance, 
obviously an important issue for all of us both as employees 
and employers. The best employers around have very vigorous 
work balance programs, whether that is providing compressed 
work weeks, flexible scheduling, on-site child care. There are 
numerous things that employers do, in part to incur a market 
advantage so that they become an employer of choice by 
providing employees work-life balance, and obviously those 
things should be encouraged. I think at some point, too, we 
need to look at our Depression-era labor laws and see if there 
are things that may inhibit employers from doing as much as 
they can do for their employees because we are still by and 
large, you know, working under labor laws that were passed 
postDepression and they may not work as well for two-earner 
families in this century.
    The Chairman. Thank you.
    Ms. Bravo?
    Ms. Bravo. Thank you so much. Don't touch the serious 
health condition, intermittent leave, or notice. I think Jody 
Heymann adequately spoke to this, and I have written materials 
on it. These are some things that need to be improved on 
implementation. A lot of the people who call the 9to5 800 
number don't know their rights, and there are studies on this, 
how few people know their rights. And I appreciated Ms. 
O'Flaherty's comments about how, unfortunately, many managers 
are saying, ``Well, if it is your mother, you can't do it; this 
is for new babies''--or something like that. DOL really needs 
to spend more energy on educating both employees and employers.
    And on expansion, we need to cover more people for more 
reasons, and we need to make it more affordable. Laws aren't 
written for good employers. They will do the right thing. We 
have to make sure there is a floor and a protection. And just 
because--you know, we have a situation where people are being 
told you must work, you can't be on welfare, you have to be a 
good parent. And yet, as soon as they are a good parent, 
because they have a sick child, they are fired. We have to make 
it so that if it is not a serious illness, thank God all kids 
don't get cancer, but they do all get strep throat and ear 
infections. And we need to have a law like the Healthy Families 
Act that Senator Kennedy has introduced that says you don't get 
fired for having these routine illnesses, either. That would 
give some protection.
    We also need to be able to use family leave, for example, 
as a number of States have done, to let people be better 
parents and go to their kid's school activities. And there are 
children who tell us this.
    And by the way, I want to say one other thing about the 
impact on kids. Nine-to-Five had a session where we came to 
tell our legislators people's stories about needed protection 
for sick days. And a woman told the story of her son, who was 
hit by a car, and didn't tell her because he knew she would be 
fired if she didn't go to work. She didn't know. She went to 
work. The other kid called. She went home, got fired, had to go 
on welfare.
    I told this story to another girl who said, you know, my 
mother has never heard me say this, but when I was a kid--she 
was 21 at the time--when I was a kid, kids hear everything. We 
know everything that is going on. Every time I was sick I would 
say, Should I tell my mom? Will we have groceries this week?
    We have to stop the situation where kids send themselves to 
school sick so their parents don't get fired.
    Thank you.
    The Chairman. Thank you.
    Ms. Ness?
    Ms. Ness. There have been a number of comments about 
intermittent leave and the definition of ``serious health 
condition'' and I have heard various proposals over the last 
several years about these conditions. I would just like to 
point out that some of these proposals would basically wipe out 
the ability of almost half of the leave-takers who have taken 
leave for medical leave because they have taken leave, for 
example, for conditions that maybe required treatment for under 
10 days.
    I think Jody Heymann pointed out something very important. 
Our medical system has changed dramatically. There are many 
breakthroughs. There are many reasons why leaves can be 
intermittent today and hospital stays are shorter.
    And there are also a series of protections built into the 
law for employers that perhaps there is not as much 
understanding or familiarity about as there needs to be, so 
education may be in order here. But for example, when an 
employee has a need for foreseeable leave, 30 days notice is 
required. An employer has the right to know the reasons for the 
leave, to ask for periodic updates, to know the status, and to 
ask about the intent to return to work.
    With respect to intermittent leave, if an employee requests 
an extension, if there has been a change in the way that the 
leave is being taken, if an employer suspects that there are 
changes that have occurred that would shed doubt on the 
original validity of the certification, they can request 
additional certification and they can request up to three 
different doctors' certification.
    So perhaps part of the problem is that employers are not as 
well informed about the protections that are built in for them.
    On the other hand, I think there are some protections that 
could be strengthened for employees. So for example, employees 
right now can be held responsible for their doctor being 
negligent in getting their certification to an employer. An 
employee could be fired if their doctor doesn't provide the 
appropriate certification. That is something we would 
definitely like to see improved.
    We also think that in many cases the 30-day notice, which 
is required, can be an enormous burden on an employee because 
many employees don't know about the 30-day notice. And if it is 
not going to cause severe harm to an employer, perhaps there 
could be some more flexibility in the granting of leave, 
without the need for that 30-day notice.
    So I think that there are ways in which the regulations 
perhaps can be improved for both employees and employers, but I 
also think that there is a great need for additional education.
    I would say one last thing here, and that is that we have a 
country in which millions of workers every day are making 
untenable choices between their jobs and their loved ones that 
probably not one of us around this table has to ever make. 
Ellen mentioned the need for making leave affordable. We have 
almost half the work force in this country that doesn't have a 
single day of paid sick leave. And when you look at low-wage 
workers, that is three-quarters of the work force.
    We tell people they need to be good and responsible family 
members, but we put them in an untenable position of having to 
choose--about whether they have to sacrifice their family's 
economic well-being or take care of their family's personal and 
family and healthcare needs.
    Thank you.
    The Chairman. Thank you.
    Mr. Payne?
    Mr. Payne. Kind of responding to Ellen and to Debra. You 
are right in that good employers have been doing things all 
along that are good, and we are no exception. We had generous 
leave before the law was enacted. The law in a sense caught up 
to us in a lot of ways. We just recently won the Family-
Friendly Workplace Award in our State.
    But the intermittent aspect, really, is a problem. One of 
the suggestions, where I think some other clarification could 
come, would be with the 15-day notification, wherein the 
employee has 15 days to provide information back documenting 
that it is actually a serious health condition that would 
qualify for an intermittent leave. And our experience has been 
that--we have given 15 days, we have given 30 days, we have 
given 45 days and then we take an action, and then 2 days later 
the documentation appears, and gone--you know, talked legally 
with them and it is the law. FMLA did not support us enough. It 
was too vague.
    And I agree, Debra, there needs to be more education 
because FMLA is so confusing. There is--you know, the joke is 
you talk to five lawyers, you get six answers on how to 
interpret the FMLA.
    The Chairman. Thank you.
    Dr. Mulvey?
    Ms. Mulvey. Thank you. I would like to address question 
three on work-life. Work-life balance is very important. I have 
conducted a number of studies in this area that have evaluated 
the ways employers can help employees balance their family 
life, especially caregiving, with work.
    Today employers are searching for strategies to attract and 
retain employees, especially amid an aging work force and a 
looming labor shortage. It is the looming war on talent you 
have heard about. My research has shown that work-life programs 
are very important in achieving this goal. Specifically, 
employers who provide flexible work schedules, generous paid 
leave for workers of all ages, and phased retirement and 
eldercare programs for older workers are more successful at 
retaining their top performing employees than those who do not. 
So employers who want to compete in labor markets will be 
addressing these issues voluntarily, without mandates. I would 
be glad to share my research with you.
    The Chairman. Thank you. And we would appreciate that. And 
also appreciate the brevity. That was the record.
    The Chairman. Ms. Boyd?
    Ms. Boyd. I just wanted to clarify--Debra raised a couple 
of points. I think with respect to the Department of Labor 
potential rulemaking that there are a lot of ways to address 
some of these issues that both you have raised and that have 
been on the employer's side, and I don't think anybody around 
this table suggested one particular way. I certainly have never 
said that a serious health condition, you know, should be 10 
days. So I think that is a misrepresentation of what we have 
been talking about.
    I think that the way to proceed on this is to have the 
Department of Labor actually begin the rulemaking process. That 
is what a rulemaking is for. Let the public make comments, let 
them see what they get back.
    And also, with respect to the surveys that have been 
mentioned before, too, those surveys are terribly out of date 
and we would like to see them perhaps redone, given the current 
environment and what we are hearing from employers.
    Thank you.
    The Chairman. My apologies, too, for going to somebody that 
already spoke before others got a chance to speak. We are 
having a little trouble with the list here, but I hope we get 
that corrected now. Thank you.
    Ms. Dohnalek?
    Ms. Dohnalek. In a hospital setting, I think intermittent 
family medical leave and modified work schedules may be the 
most difficult to staff and time-consuming to track. Staffing 
for a portion of a shift may be impossible, and this period 
typically goes uncovered. This impacts patient care and safety, 
obviously. This also places undue burden on the system and on 
colleagues. Other workers are entitled to their time away from 
work, but may feel obligated, especially in a healthcare 
setting, to cover for employees that are out on FML. Although 
the employee is requested to schedule leave at times that do 
not unduly disrupt operations and to notify the employer in 
advance, how can the organization be certain of this or control 
this? Covering for a certain time off, perhaps Mondays or 
extended periods, is less cumbersome than intermittent short 
periods in a healthcare setting.
    So if we could minimize the ability to use intermittent 
leave because we need to consider the effect of several staff 
out on FMLA and the impact to satisfaction and safety on many 
levels. So reconsider intermittent leave and require doctor's 
visits with each absence, although physicians typically meet 
the request of the employee. Maybe a requirement to work in 
collaboration with the organization to schedule leave at the 
time that is least disruptive to the organization.
    I think another thing that needs to be looked at is 
tightening up the definition of what constitutes a ``serious 
illness.'' Originally the act was developed for things like 
chemotherapy treatments, radiation, etc, and now it seems that 
it is abused for sick time. The threshold for acceptance is on 
the employer rather than strict guidelines and expectations.
    And one more thing that I would like to possibly be 
considered with the act is supporting institutions in managing 
the FMLA when appropriate. Institutions should not feel forced 
to make decisions in favor of the employee due to the legal 
    The FMLA is an example of understanding that health issues 
occur and that employees should not be penalized for the 
unforeseen events. However, changes to the act can be an 
opportunity to improve the balance that needs to be struck 
between the employer, as in the case of hospitals and their 
needs for quality patient care, and the employees who provide 
    Thank you.
    The Chairman. Thank you.
    Ms. O'Flaherty?
    Ms. O'Flaherty. In our company we do allow pretty hefty 
benefits. We do have a paid 12-week parental leave for both the 
primary caregiver and a week for the nonprimary caregiver--
which is separate from the FMLA. It can run concurrently. We 
also provide an Acute Policy for acute treatment such as 
chemotherapy or radiation for the employee, and it is a paid--
they work 60 percent of their time. That way they can 
intermittently be out, and we pay them their regular salary.
    With all our benefits, we also still do have problems with 
intermittent leave. Again, it is a wonderful thing. What I 
would challenge people to look at is what can you do and what 
can we do besides getting the doctor's advice and going back 
for recertifications for those people who have issues. How can 
we challenge those people who are deemed by their fellow 
employees, because it not only affects the employer themselves, 
but their fellow employees who have to take up the slack. When 
they hear them talking about issues, what can we look at to 
kind of put our arms around that for their fellow employees 
    And I think that is one of the issues of intermittent. It 
isn't that it's bad, but how do we--that 5 percent causes the 
largest noise. And I think that is the thing we need to look 
at. What can we go around to do that?
    For instance, somebody who asks for a vacation day and they 
can't have it because there aren't enough vacation days for 
everybody else using it that day, so they are not allowed to 
have it. So, okay, you can't have a vacation day. They turn 
around and on that day they call in FMLA. And it happens 
numerous times and there is not a way to get around it. If 
there is a way to do it without harming the individual, without 
harming the employer and the other employees, to come up with a 
way to actually certify and see the difficult issues that go 
along there.
    The Chairman. Thank you.
    Ms. Willman?
    Ms. Willman. I think it is apparent from what everybody has 
said that we want the same thing here. We want employers to 
comply in good faith with the FMLA and the regulations, and we 
would like employees to do the same thing. And the way to deal 
with that is not expansion of the act, not until we have at 
least fixed the regulations where the problems are occurring. 
And I also think there is a perfect opportunity for a 
bipartisan effort here, since we all want the same thing.
    The place to fix this is at the DOL. They came up with the 
regulations, that is where the problems are. If the problems 
aren't fixed there, they are going to be fixed by the courts. 
The disadvantage of having the courts fix the problems is that 
all of the stakeholders who are sitting in this room today will 
get no say in what the courts will do with those issues.
    Right now, since Ragsdale, we have had over 100 cases that 
have cited to Ragsdale. There have been at least 12 regulations 
invalidated by Ragsdale itself which have never been fixed in 
the regulations--a reason in and of itself for the DOL to go 
back and change and eliminate all the categorical penalties in 
    In addition to that, we are now seeing the Federal courts 
of appeals, at least the 7th and 8th Circuits, have basically 
taken the position that the DOL exceeded its authority by 
allowing permanent leave for unscheduled intermittent absences. 
And I quote to you from the 8th Circuit case: ``The FMLA does 
not provide an employee with a right to unscheduled and 
unpredictable but cumulatively substantial absences or a right 
to take unscheduled leave at a moment's notice for the rest of 
her career.''
    The problem with intermittent leaves is that the employee 
who stays home makes the medical determination on whether he or 
she can work that day. A doctor does not make that decision. 
The employee is not required to call the doctor, not required 
to see the doctor. The employee just has to pick up the phone 
and say I'm not coming in that day because I'm taking an FMLA 
day. And there is not much the employer can do to fight those 
types of abuses.
    There are two things I think need to be changed in the act. 
One is to go back and look at the definition of ``serious''--
not in the act, in the regulations. I am sorry. The definition 
of ``serious health condition'' and focus on the word 
``serious.'' And also in the regulations, to remind the 
Department of Labor that the act itself starts out and says, 
``An Act to grant family temporary medical leave''--not 
permanent leave--``for chronic serious health conditions.''
    Thank you for the opportunity to share comments.
    The Chairman. Thank you.
    Ms. Alexander?
    Ms. Alexander. Thank you.
    I think as I listen to the entire conversation--I just made 
some notes as I listened--and the way that I would approach 
problem-solving in building a business, and I think that when I 
hear that we are trying to make changes when it is working for 
95 percent and we want to make these changes because we have 5 
percent are abusing, and now we are going to affect the 95 
percent by the changes that we would make, it concerns me. I 
think that there is a time where you step back before making 
these decisions and look at the comprehensive problem that we 
have. And the problem that we have is that we do have issues 
with work-family balance in our Nation at this point.
    And I hear the numbers of measurements of what the FMLA 
costs. Well, from what I hear, those costs are the cost of 
illnesses in our Nation. It is the cost of having to take care 
of our families. We have chosen right now to implement the 
FMLA, but those costs would be there whether the FMLA was there 
or not. And so they are not true measurements of the costs of 
the way we chose to do it, and so I think we need to begin to 
review and say that if it is done in this manner, our cost is 
this in solving this problem; if we want to make a change, then 
let's have an improvement and show how that improvement 
improves or decreases the cost that this issue brings to our 
    So I think we are looking at the act itself and saying that 
the cost of it is the act. No, the cost that we are measuring 
is the cost of illness and the need to take care of our 
families. And so we need to separate those two.
    I think the other thing that I would like to see is just 
for people to come together and, rather than look at the 
problems, let's find the places where this is working, let's 
find the examples where there are companies and industries that 
have made this work and made it work well, and see the things 
that can be learned from that and shared with others. Because 
at this point, we are looking at taking the problems and going 
and fixing them by changing regulations, rather than looking at 
the problem itself and trying to correct the problem.
    The Chairman. Thank you.
    Dr. Heymann?
    Dr. Heymann. Thank you.
    First, I want to briefly respond to the point that has been 
raised about addressing intermittent leave and serious health 
conditions. Specifically what I want to say is, while specific 
proposals haven't been raised in this forum, in other forums 
suggestions have been made that one thing that might be done is 
expanding the length required for intermittent leave and 
expanding the length required for a serious health illness. And 
so I just want to go on the record, and state my deep concerns 
about those, for two reasons.
    One, intermittent leave, the importance of being able to 
take that brief amount of time. It is easier in a healthcare 
setting, it is easier in other work settings to cover somebody 
for an hour than a half day. We should never make people take 
longer unpaid leave than they need.
    In terms of the duration-of-illness piece around serious 
health conditions that is currently part of the definition, I 
just want you to know that the average hospital stay right now 
for adults with heart disease is only 4.6 days. The average 
hospital stay for children with asthma is 2.3 days. The average 
hospital stay of any kind decreased from 8 days in 1970 to 5 
days in 2001. These are short. We need to make sure that these 
kinds of serious illnesses remain covered.
    OK, so what can we do? We do think there are things that 
can be done to make it better. I just want to mention a couple 
of things.
    First, I agree with what has been said by a number of 
people that more Americans need to know about their rights 
under FMLA, particularly those who have family members with 
serious chronic conditions. I have spoken with mothers whose 
children have been hospitalized with asthma because they didn't 
take the day off from work, thinking they would have to lose 
their job and had no choice. I have also spoken to mothers who 
lost their job when they did take that day to care for a child 
in the hospital with asthma, a condition that affects 9 million 
children. There is confusion out there. There is a lack of 
knowledge about coverage and we need to make sure, 
particularly, that those families who have one of the millions 
of children with the chronic condition know about their rights 
under the FMLA.
    Second thing we could do, we need to begin to discuss and 
address paid parental leave. Nobody here has cited any concerns 
about how parental leave is working under the act. The main 
problem with it is the lack of pay. Right now, the leading 
reason Americans can't make use of the FMLA is they can't 
afford it, 78 percent of Americans say they don't do it because 
they can't afford it.
    We studied laws in 168 countries around the world. One 
hundred sixty-four of them guarantee paid leave for mothers 
when they have children. One hundred sixty-four. every single 
industrialized country, but, you can tell by that number, most 
of the countries in Africa, Asia, Latin America, Europe, 
wherever you look. Who doesn't besides the United States? Papua 
New Guinea, Lesotho, and Swaziland. That is it. So one of the 
things we really have to do is start thinking about paid 
parental leave.
    The last piece I want to mention, to your third question, 
what else should we be considering, the Healthy Families Act 
was introduced last year, a way to give short-term paid sick 
leave. Many companies already do this, as has been mentioned. 
But half of Americans do not have that. Having paid sick leave, 
parents who have it are five times as likely to be able to care 
for their children when they are sick. Adults who have it are 
2.5 times more likely to be able to keep their jobs when they 
are sick, and return to work. It is essential, and we need to 
cover the 59 million Americans who currently don't have it.
    Again, this is something that, by all global standards, 
exists very broadly. One hundred thirty-nine countries already 
provide for this, and it is something we could do. I would hope 
that the committee would take seriously the Healthy Families 
Act or similar legislation to guarantee short-term paid sick 
    Thank you.
    The Chairman. Mr. Prybutok?
    Mr. Prybutok. Thank you. As many panelists have mentioned, 
I believe that the definition of serious health condition needs 
to be reviewed and made more clear. Particularly for a small 
company who cannot afford an HR professional and lawyers. When 
regulations are unclear and nonspecific, it presents a burden 
and a problem.
    Regarding the FMLA, we really have not had that significant 
a problem with it at our current size, but I do believe that it 
should not affect employers of 50 employees. I think that is 
too small. I think the threshold should be increased because of 
the costs to employers.
    Relative to the work-life balance, we operate in a very 
competitive business environment. All businesses that I 
interface with talk about the difficulty in hiring and 
retaining quality employees. Consequently, a natural 
consequence of the competitive business environment is--and due 
to low unemployment in the United States and a robust economy--
is the need to be flexible with benefits, to be competitive in 
the benefits that are offered, and we see more and more 
movement toward that flexibility.
    The concern we have, as some of the panelists have raised, 
as far as increasing the coverage of FMLA and increasing 
mandates is that as you increase mandates and remove the 
flexibility of manufacturers to administer benefit policies, 
employers are going to acquire the least-cost method of meeting 
the benefit mandate. What is going to happen also is they are 
going to tend to reduce their employee rolls to an absolute 
minimum, utilize temporary workers. We believe it is going to 
potentially lead to increased unemployment, decreased 
productivity, and the final analysis is we look across the 
ocean and we will have the European experience. And I do not 
think that is good for business; I do not think it is good for 
the employees.
    The Chairman. Thank you.
    Mr. Lancaster?
    Mr. Lancaster. Yes, our suggestion on this issue is that 
when a collective bargaining agreement exists, such as ours, 
that provides for sickness, provides for sick leave, and has an 
attendance policy, that agreement should govern in this 
situation, particularly when it goes beyond what is provided 
for in the FMLA, and ours does in terms of paid leaves.
    In any event, some other suggestion is that the liberal 
definitions that exist in the regulations need to be tightened 
up to prevent the abuse. We think that the Department of Labor 
has gone far beyond the intent of Congress here. In fact, due 
to the liberal definitions in the regs, we feel that one-third 
of all of our associates could qualify for FMLA leave at any 
time and without prior notice, which would just make it 
impossible for us to run our business.
    The intermittent leave provision that presently provides 
leave without notice is very difficult for us to deal with. We 
also need to provide for verification of health issues in some 
meaningful, realistic way. Currently there are 48 hours to 
challenge; doctor notes are not required; second opinions are 
not practical. So there are a lot of problems with the ability 
to verify. Currently we see FMLA intermittent being used for 
tardies, to justify tardies, and leave early from work 
situations. Our people are very well aware of the FMLA because 
there is instruction that goes on by the union on this.
    In terms of costs, the costs that we see, when people do 
not show up for work we have a manpower shortage. We cannot get 
our production done in the 5 days. We have to schedule 
overtime, time and a half. So that is a real cost to us, not 
just the cost of the medical problem.
    Thank you.
    The Chairman. Thank you.
    Ms. Bravo?
    Ms. Bravo. I just wanted to say two things. I appreciate 
that there are best-practice employers who do the right thing. 
When the Family and Medical Leave Act was passed, two-thirds of 
covered employers--two-thirds--had to change one or more 
provisions because they were not already complying, and mainly 
it meant they were not letting fathers take leave, they were 
not letting adoptive parents take leave, they were not letting 
people take leave for the serious illness of a family member.
    Second, I appreciate that employers need flexibility. There 
is a certain flexibility they should not have, and that 
includes firing someone because they have a chronically ill 
child or ailment of their own.
    The Chairman. Thank you.
    Ms. Ness?
    Ms. Ness. I would like to second something Ms. Boyd said, 
which is that we are desperately in need of some more up-to-
date objective research. I am sure if our coalition went out 
and did a select survey of our constituents, we would get a 
very different perspective on the Family and Medical Leave Act. 
It has not been done since the year 2000. I think it is time 
for us to once again survey a representative sample of 
employers and employees so we can better understand what is 
working and what is not.
    From the latest research we have, we have numbers in the 
high 80s and 90s, both from employers and employees, saying 
that it is working. And, again, I think that a lot of the 
questions that have been raised today about the lack of clarity 
in the regs are questions which could be benefited from 
additional education.
    I will close by saying that the support for policies that 
would make our Nation more family friendly goes across the 
board. It is not a red State or a blue State issue. If you 
survey people, every demographic group, every economic group, 
every part of this country, people talk about the need to 
support our families and to not have people in this untenable 
position of having to choose between their loved ones and their 
jobs. They need to be able to take care of both.
    So I would urge this committee to encourage the Department 
of Labor to take on some new research in this area.
    The Chairman. Dr. Mulvey?
    Ms. Mulvey. Thank you. I would like to say a few things.
    The costs that we have talked about are not the costs of 
illnesses, but they are the costs of lost productivity, lost 
profits, and replacement labor. And in terms of the way surveys 
are done, our survey did cover half a million workers, and our 
prevalence numbers were very similar to the 2000 survey, and 
our duration numbers were very similar. So we are confident 
that we are capturing the right characteristics.
    And one quick thing about the international issue. Many of 
the countries that are providing generous paid leave in Europe 
also have very poor economies and high unemployment rates. So 
that is a path that I do not think we want to go down.
    The Chairman. Thank you.
    Dr. Heymann?
    Dr. Heymann. I just want to respond briefly on the cost 
issue in two ways.
    The first is just to say simply those countries that have 
far greater benefits than the United States are most of the 
countries in the world. As a result, there are many of these 
countries that happen to have very low unemployment, lower 
unemployment than we do. Many have high productivity. There are 
some with high unemployment and low productivity. But it is 
clear when you look at the countries involved and you look at 
the numbers, there is no link to unemployment or to 
productivity among these.
    The second thing I want to talk about is the cost that we 
really have not talked about here, which is the very high cost 
when we do not do enough. And those are the unnecessary 
hospitalizations. I mentioned the asthma case. That is just one 
of many. The unnecessary illnesses that occur when we have the 
spread of infectious diseases. The U.S. Centers for Disease 
Control and Prevention argued that people should not go to work 
this year when they had influenza. Why? Because it leads to 
over 90,000 hospitalizations, and 36,000 deaths a year. It has 
a tremendous economic cost from lost work. And yet people go to 
work because they have no choice. So there are enormous costs 
to us for doing nothing.
    Thank you.
    The Chairman. Thank you.
    Ms. Alexander?
    Ms. Alexander. Just two quick points. Thank you for calling 
on me.
    I still look at the point that you can have on any given 
day or at any given time a number of people that need to be out 
for various reasons, and I have actually reviewed this with our 
head of HR; that in reviewing the FMLA, you know, we could have 
someone in a small company where all of a sudden I have four 
people that need to be out. But as we reviewed it, we quickly 
recognized the fact that it was not the FMLA that required them 
to be out. It was because of what just happened in their life, 
and that would happen regardless whether the FMLA was there or 
not. And so that is not what is causing these issues. It is the 
things that people have to deal with in their life, and that is 
something that I am going to have to address with my company 
and with how I am going to run it.
    The other thing that I would say is that when we talk about 
the loss of productivity, we keep talking about the loss of 
productivity because someone is out, and we are not addressing 
as Patti talked about or what I have personally experienced or 
what I see with my employees, is the loss of productivity where 
someone is at work for those hours because they could not 
afford to leave, but their mind is not with me. Their mind is 
on the fact that their child is there and they need to be with 
them. Or, you know, we mentioned a migraine headache, whether 
it is covered under this or something else, if someone has a 
migraine headache, if they leave for an hour and take the 
proper medication, I have lost them for an hour. If they do 
not, I have lost them for 8 hours to 3 days because of the 
treatment of that migraine which has progressed too far at that 
point. And so there is loss of productivity by not allowing 
these intermittent leaves to take place.
    The Chairman. Thank you.
    Mr. Lancaster?
    Mr. Lancaster. Thank you. As I mentioned, American Axle is 
in the globally competitive automotive industry, and anything 
that drives U.S. production costs jeopardizes U.S. jobs. I 
would like that to be taken into account.
    Also, something that has not been discussed here is the 
cost driven by the poor morale of workers who see the abuses. 
And we have had situations where hourly workers have come to us 
to complain about abuses by their coworkers. And, in fact, we 
have tried to address those, but because of the law of the 
State, even when we found an abuse, there is not much we could 
do about it.
    Third, I would like to point out that in terms of balance 
of work life and personal life, in terms of our schedules of 
annual working days per year, we start with 365 days. We back 
out weekends, 17 paid holidays, and then 3 weeks, which is the 
average vacation time. That brings us down to 229 working days 
in the United States. We have a very small operation in India; 
they have 249 working days. Our operation in Brazil has 264 
working days. Our operation in Mexico has 282 working days.
    The more days we allow people not to come to work, it just 
jeopardizes our ability to compete and drives these jobs 
    The Chairman. Thank you.
    Ms. Dohnalek?
    Ms. Dohnalek. For the record, I would like to respond to 
the statement that it is easier to cover a half-day in a 
healthcare setting than an entire day. I disagree with that. 
That does not tend to be my experience. It is much more 
difficult to cover a half or a portion of a day than an entire 
    The Chairman. Thank you.
    Ms. Marsden?
    Ms. Marsden. Yes, thank you. I would just like to make a 
couple of comments in regard to, again, a request to take a 
look at the intermittent leave periods of time, and to suggest 
that it needs to be greater than just 6 minutes. We need to be 
able to get a handle on it from the standpoint of someone who 
is taking it, and I have had this happen on a continuous basis 
for--you know, year after year. One-hour increments to me seems 
like it would be something that should be looked at. And we 
have sick leave provisions--many employers do--for parents to 
be able to take time to go take their children to the doctor or 
for minor cases. And so I would like that to be looked into.
    I would also like to have the ``serious health condition'' 
better defined. Again, I would like to make that statement 
clearer. I don't think it is there. It is difficult to 
administer this leave without doing that. And I think we need 
to provide assistance to the doctors regarding the form that 
they have to fill out. I feel like that form is very onerous 
when they take a look at it. They go through and put very 
cryptic remarks. You cannot read it most of the time. And so I 
would suggest that perhaps the form needs to be made more user 
    Thank you.
    The Chairman. Thank you.
    Ms. Ness?
    Ms. Ness. Since we have been talking a lot about costs, I 
just want to raise another arena of costs. We have over 300,000 
bankruptcies in this country that occur every year due to 
people having unpaid leave during a period of illness. It leads 
to loss of pay, loss of job, loss of health insurance. It sets 
people off on a cycle of economic disaster. Every 30 seconds 
somebody in this country files bankruptcy in the aftermath of a 
health problem.
    When we began our work to advocate for family and medical 
leave, we heard many of the same arguments that we hear today. 
We were told it was economically unviable. We were told we were 
crazy, that this was just not consistent with the way we do 
things in this country. We implemented Family and Medical 
Leave. The economy never did crash. And I think while there are 
costs associated with implementation of Family and Medical 
Leave, the research that needs to be done should also look at 
the costs associated with not having it. And long before we 
ever enacted this law, there were many, many companies in this 
country who were providing family and medical leave benefits 
far more generous than this law, and they were doing it because 
it made good business sense.
    Thank you.
    The Chairman. Thank you.
    Dr. Barbanel?
    Dr. Barbanel. I want to just talk about the ``migrating 
diagnosis'' in Family and Medical Leave. Somebody might come in 
with a musculoskeletal problem and then that gets better, and 
then they are comfortable with being out of work so many days a 
week or all week, and then they cannot go back because they 
have the stress problem. And then you try to unwind that and 
find out whether the person is being adequately treated, to the 
extent somebody will tell you that, and then that diagnosis is 
that the person needs 1 day off from work on a Friday. And it 
is a continually evolving thing for employees that misuse the 
Family and Medical Leave Act.
    The Chairman. Thank you.
    Mr. Payne?
    Mr. Payne. Thank you. I just wanted to kind of respond and 
reiterate speaking from a healthcare setting, and, Marie, I 
understand from some companies that it is not the issue that it 
is in healthcare, but it is a tremendous issue. You have to 
understand, we are stressed for staff to begin with. We have 
9,000 employees, about 2,000 nurses. On any given day, I have 
200 nursing openings that we have been struggling to fill for 
months. So we already are working with temporary staffing and 
shifts that go unfilled. And when you couple that with chronic 
intermittent call-ins, it is a problem. And they do call in 
first thing in the morning without any prior notice. They will 
give us the proper 2 hours before the shift starts, but that 
means they are not there for that day.
    The intermittent aspect of it, what we have been advised is 
that when someone--when you get the initial medical 
certification, you cannot have a discussion. You can ask for a 
second opinion. But once the intermittent diagnosis kind of 
goes on and you are 6 months into this intermittent thing, your 
ability to then renegotiate with the doctor is very limited. 
That is how we have been advised, and we are pretty certain 
that is good legal advice. And that is frustrating because we 
feel that management feels powerless and hopeless and deeply 
frustrated by what is often perceived as abuses of the system.
    The Chairman. Thank you.
    Ms. Philips?
    Ms. Philips. I just wanted to restate how necessary the 
FMLA was for my family. Like I said before, it was a godsend 
for us. We are just now getting back on our feet. FMLA, yes, is 
unpaid. I used everything else possible because we needed my 
salary. But, more importantly, as I said, we had to have the 
insurance. Without the FMLA, I don't know how my family would 
have survived.
    Another important part of treatment for your child when 
they are ill like this is stability in the family, and that is 
the one thing that the FMLA gave us, was stability and peace of 
mind so we could focus on helping our daughter.
    Thank you.
    The Chairman. And, Ms. Boyd, for the concluding statement. 
    Ms. Boyd. That is a lot of pressure, Senator Enzi. Just a 
couple of quick points.
    Back to intermittent leave, and this may be a little bit of 
a wrap-up of what people have said before, and that is that it 
is unrealistic in all settings to think that somebody can be 6 
minutes or 10 minutes late or 15 minutes late and that 
everything will just begin then when they show up. Obviously in 
healthcare, you need people to be there when they need to be 
there. The same is true in a production setting and 
    It is part of the problem with having unscheduled 
intermittent leave, that those small chunks of time where 
people can just show up continuously tardy is problematic. It 
means a shift does not begin on time, and it means you have to 
cover in some other way.
    I think what we are really talking about from the employer 
perspective, when we look at these regulations, is that there 
is a real management challenge that was not, I think, 
intentional when the regulations were written. But when you 
combine this very broad definition of ``serious health 
condition,'' the ability to take time off for chronic 
conditions in very small amounts of time, and not having a lot 
of ability to do the follow-up, that you really cannot manage 
an absence if you suspect that there is something going on 
other than a real legitimate absence. You cannot ask the same 
questions that you would ask in a situation where somebody was 
just calling in for sick leave. And we know it is a very small 
percentage of the population, but there is enough of a 
percentage of the population that it causes disruption in 
workplaces that use the FMLA as a shield to prevent discipline 
and to protect their jobs.
    That is problematic, and it should be really problematic--
and I think we have heard a little bit about the morale 
issues--for people who use the statute properly. It undermines 
the legitimate use of the statute to have that small percentage 
of the population being able to use it improperly. And that is 
the very targeted, tiny issue that employers would like to see 
addressed in the regulations. I think it can be done without 
undermining the basic protections of the statute, and that 
ought to be our goal.
    Thank you.
    The Chairman. Thank you, and I want to thank all of you who 
took the time out of your day and your lives to provide us with 
information. We have got a lot to digest, and I assume that we 
will get more.
    I want to particularly encourage those of you who had some 
statistics to submit those because I was not a fast enough 
writer to get them. I suspect that my staff did a much better 
job than I did, but those numbers are always helpful. If any of 
you want to expand on comments that you made or comment on 
comments that others made, we would appreciate your submitting 
    I would mention that Senators Kennedy and Dodd are 
submitting statements for the record, and all members of the 
committee may be asking you some clarifying questions, and I 
would appreciate it if you would answer those as quickly as 
possible so that we can make them a part of the record. And we 
will be sharing all of this with the Department of Labor as 
well. So we have kind of used up our allotted time today. I do 
want to thank all of you for taking the time to participate. I 
particularly know how long it takes to get here from Gillette.
    The Chairman. I make the trip to Wyoming most weekends. I 
only get to Gillette about once a quarter because I have to get 
all over the State.
    [The prepared statement of Senator Kennedy follows:]

            Prepared Statement of Senator Edward M. Kennedy

    Millions of hard-working men and women are facing an 
increasingly impossible choice today between the jobs they need 
and the families they love. The percentage of two-parent 
families in which both parents work has doubled since 1970; 
more than 10 million single parents are struggling to balance 
their jobs and their family obligations; and nearly 21 million 
full-time employees are also caregivers for elderly relatives.
    The delicate balance between work and family becomes 
especially difficult when a new child arrives or a medical 
emergency strikes. I learned this first-hand when my son was 
diagnosed with cancer and lost his leg in 1973. Months of 
difficult treatment followed, and he had the good fortune to 
become cancer-free and return to a full life. I was fortunate 
enough to be able to take the time I needed to be there for 
    In 1993, with the strong support of the National 
Partnership for Women and Families and many others, Congress 
enacted the Family and Medical Leave Act. In the 12 years since 
then, the act has been a significant success, enabling more 
than 50 million Americans to take time off when they needed it 
most without fearing the loss of their job. These enormous 
benefits to working families have come with little cost to 
businesses. A Labor Department report in 2000 found that the 
act has had a positive or neutral effect on 90 percent of 
businesses' profitability and 84 percent of businesses' 
    Despite its success, however, the act is now under attack 
by opponents who are calling on the Department of Labor to 
undercut its critical protections. They want to narrow the 
definition of ``serious health condition.'' The current 
regulations allow for job-protected leave when an employee 
needs more than 3 days of treatment and recovery, and it's a 
fair and reasonable requirement. If the opponents' current 
proposal had been in effect over the last 12 years, it would 
have excluded 25 million workers who used the act for serious 
illnesses such as acute appendicitis, heart attacks, strokes, 
hernia repairs, and pneumonia.
    Opponents also propose a change in the intermittent leave 
regulations, which could force employees who require frequent, 
short treatments--such as for chemotherapy, dialysis, 
occupational and physical therapy, or pre-natal visits--to 
exhaust their leave. It would burden employers with additional 
administrative costs as well.
    These changes would be flagrantly inconsistent with the 
needs of today's workers and would eliminate much-needed 
flexibility. Surely, Congress and the Administration should not 
undercut the act when the problem of the work-family balance is 
now taking a heavy toll on working families. Instead, we should 
be building on the act's success by expanding it. The current 
act does not provide protection to employees in firms with 
fewer than 50 employees. It also does not allow leave when 
parents need time to be more involved in their children's 
schools. I have co-sponsored the Family Medical Leave Expansion 
Act, S. 282, which Senator Dodd has introduced to address both 
of these issues.
    As employees try to balance work and family, they also need 
paid time off for everyday illnesses and preventive care, such 
as annual check-ups, or when their child is sick with a cold, 
or when an elderly parent needs to be taken to a doctor. To 
deal with these problems, I have introduced the Healthy 
Families Act, S. 932, which would directly benefit 66 million 
Americans by guaranteeing workers 7 paid sick days a year to 
meet their medical needs and those of their family members.
    [The prepared statement of Senator Dodd was not available 
at time of print:]
    The Chairman. This has been very helpful, and it does make 
sense for all of us to periodically review how the laws that 
are enacted are actually in effect, and that is one of the 
requirements that our committee has, is to provide oversight 
over the jurisdiction that we have. And, of course, we have 
jurisdiction in health and education and labor and pensions, 
and besides that, we have 38 reauthorizations we are supposed 
to do in those areas by the end of September. So our committee 
has one of the biggest workloads, but we are trying to delve 
into these areas where we need to know more and we need to 
share more and we need to educate people more. And you have 
made a tremendous start on that today.
    I think there was a good deal of common ground here today 
and just a lot of outstanding comments and suggestions. And all 
of us recognize that for employees it has been a great benefit 
to be able to take time off to address their own or family 
members' health needs. It is a good benefit. But from what I 
have heard today, we can make it better.
    Thanks for your comments and I express that on behalf of 
the entire committee. Thank you for being here today, and I 
appreciate the great participation from spectators, too.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

       Response to Questions of Senator Enzi by Patrick Lancaster
    Question 1. You testified that obtaining second opinions during the 
medical certification process is not practical. Please explain why and 
what alternatives you would propose.
    Answer 1. The FMLA prohibits employers from obtaining a second 
opinion from a healthcare provider that is ``employed on a regular 
basis by the employer.'' 29 U.S.C.  2613(c)(2). The Department of 
Labor's (DOL) regulations have interpreted this provision very broadly 
to mean, not just that employers cannot use company doctors or nurses 
actually employed by the employer, but also that the ``employer may not 
regularly contract with or otherwise utilize the services of the 
healthcare provider furnishing the second opinion unless the employer 
is located in an area where access to healthcare is extremely limited. 
. . . '' 29 C.F.R.  825.307(b). In addition, in situations where the 
health of a family member is involved, obtaining second opinions for 
family members of employees is very burdensome given the fact that 
employers do not maintain family members' addresses and telephone 
numbers, or the wide geographic network of physicians necessary to 
conduct evaluations on such family members for second opinions.
    There are several problems with the broad restriction on who can be 
used for second opinions:
    1. DOL has unreasonably expanded the prohibition beyond that which 
was contemplated in 29 U.S.C.  2613(c)(2);
    2. Large employers, like American Axle & Manufacturing, Inc. 
(``AAM''), typically administer hundreds and sometimes thousands of 
FMLA leaves each year. It is overly burdensome to require such 
employers to engage the services of a large number of different 
healthcare providers for the purpose of seeking second opinions for 
multiple FMLA leaves;
    3. The availability of a tie-breaking third opinion by a healthcare 
provider selected jointly by the employee and employer provides 
adequate protection to the employee;
    4. The DOL's regulation is vague in that it does not specify what 
is meant by ``regularly contract with or otherwise utilize.'' Does this 
mean that using the same specialist for second opinions on two or three 
employees is not permissible? Or is it 10, 12, or 20? There is no 
reasoned basis, given the availability of the tie-breaking third 
opinion, for requiring an employer to find a different healthcare 
provider every time it seeks a second opinion about alleged serious 
health conditions that may be similar in nature. Yet that is what the 
DOL regulations arguably require.
    The solution to this practical problem is simply to follow the 
express language of the statute. Preclude employers from using 
healthcare providers they actually employ but not otherwise restrict 
their selection of healthcare providers in the general marketplace.

    Question 2. The vast majority of panelists at the Senate Roundtable 
agreed that the FMLA has been largely successful and has worked in 
almost all situations. Do you agree that regulatory changes should not 
be made that would negatively affect significant numbers of FMLA leave-
    Answer 2. With all due respect, I do not agree that the FMLA has 
been largely successful and has worked in almost all situations, nor do 
I believe that this was the consensus of the Senate Roundtable. I also 
do not agree that regulatory changes should not be made.
    Although the FMLA has certainly achieved its objective in providing 
large numbers of employees with the opportunity to take job-protected 
leaves when facing serious health problems or life-altering events such 
as the birth of a child, it has achieved this objective by imposing a 
huge administrative and cost burden on employers and by creating an 
incredible labyrinth of regulations that are rife with opportunities 
for missteps even by the most conscientious of employers and for abuse 
by employees.
    The most difficult aspect of the FMLA to administer is intermittent 
leaves. The problem of administering intermittent leaves is exacerbated 
by the DOL's broad definition of what constitutes a serious health 
condition. As a result, most of the abuse experienced by AAM has come 
from intermittent leaves. Employees receive medical certification 
regarding intermittent conditions such as migraine headaches, chronic 
back pain or asthma, conditions that are notoriously difficult to 
observe, and then use the availability of intermittent FMLA leave to 
come to work late, leave work early or take casual absences without any 
penalty under the attendance program established in the collective 
bargaining agreements with the unions that represent all of AAM's 
hourly employees in the United States. The same is true for some 
employees who obtain intermittent leaves to care for family members 
with allegedly serious, but intermittent, health conditions. Because 
the DOL's regulations prohibit employers from requiring such employees 
to obtain an excuse from a healthcare provider whenever they take 
intermittent FMLA leave--something employers have historically 
requested of employees who miss work--or to obtain an effective 
recertification of the serious health condition (an employer is not 
allowed to get a second or third opinion when seeking a recertification 
or to seek a recertification more often than every 30 days), the 
employer has no effective way to ensure that employees are truly 
missing work for a reason that qualifies as FMLA leave.
    The regulatory changes I and others suggested at the meeting were 
not designed to limit the rights of legitimate FMLA leave-takers. They 
were intended to avoid opportunities for abuse and to make the path to 
compliance easier to follow for employers. The only leave-takers who 
would be affected by the types of changes that ought to be made in the 
FMLA regulations are those who are not entitled in the first place to 
the job-protected time off they are taking.

    Question 3. Would you support comprehensive, methodologically 
rigorous, independent research on the FMLA that would update the 1995 
and 2000 DOL studies?
    Answer 3. No. It is clear that DOL's present FMLA regulations far 
exceed the intent of Congress. Large numbers of employer and employee 
groups have provided considerable feedback regarding the FMLA that can 
and should be used to address the problems with administering leaves 
under the statute. There is no need to waste time and money on yet 
another study and allow further abuse and additional cost. The DOL's 
1995 and 2000 studies were far out of step with what we at AAM have 
experienced in attempting to administer the FMLA.

    Question 4. Please discuss your use of existing FMLA employer 
safeguards. In what percentage of cases do you request second opinions, 
third opinions, and re-certifications? Please also explain the 
procedures you use to investigate alleged employee abuse of FMLA.
    Answer 4. AAM does not have compiled statistics on how often second 
and third opinions or recertifications are used. Unfortunately, 
particularly in the case of intermittent leaves, the safeguards 
available to employers to curb abuse are largely illusory. As indicated 
earlier, employers have no effective means of verifying that the reason 
an employee is late for work or intermittently missing days of work is 
because of the serious health condition for which they were certified 
perhaps months ago. The recertification process is typically a waste of 
time and money because the employer cannot challenge the 
recertification through second and third opinions under the DOL's 
current regulations. Employers also cannot seek medical excuses that 
verify the need for time off. What typically occurs is that an employee 
calls in and states that he or she needs to take an FMLA day because of 
a headache. Unless we stumble upon the employee at the golf course or 
at a softball game, AAM cannot effectively verify the employee's need 
for intermittent time off on that particular day. Even when we do find 
instances with the appearance of abuse, employees may still claim they 
were suffering from a serious health condition at the time based on the 
regulations liberal definitions of a serious health condition. Given 
the burden, expense, and litigation risk that is posed by challenging 
these call-ins (i.e. re-certifications), and the fact that such 
challenges are largely ineffective, AAM's hands are tied if the company 
suspects that an employee is abusing his or her leave rights.

    Question 5. Do you agree that more employer and employee education 
is needed to guarantee successful implementation of the FMLA? Do you 
believe that you have a solid understanding of your rights and 
responsibilities under the FMLA as an employer? How do you educate your 
workforce about the FMLA? Do your employees know their rights and 
responsibilities under the FMLA?
    Answer 5. There is no need for additional employee education. The 
FMLA posting requirements coupled with aggressive informational and 
coaching campaigns by unions have made most employees at companies like 
AAM well aware of their rights and the loopholes available under the 
FMLA. At AAM, the UAW has educated the hourly workforce on the FMLA. 
Unfortunately, the dissemination of this information has also led to 
considerable abuse, as employees have regularly used FMLA leave as an 
excuse for casual absenteeism under AAM's jointly agreed upon and 
administered union/management attendance program.
    The DOL should simplify the regulations in accordance with 
Congress' legislative intent when Congress enacted the FMLA. It is 
astonishing that the FMLA regulations are considerably longer and more 
confusing than the regulations administering the Americans with 
Disabilities Act (ADA). The DOL must do a better job of coordinating 
those regulations that also impact rights under the ADA and State 
workers' compensation statutes. In most instances, the DOL leaves it to 
the employer to figure out which regulations (FMLA, ADA or workers' 
compensation) provide the greatest benefit to employees and to then 
apply the regulation that provides the greatest benefit. If the manager 
is wrong, the manager could be held personally liable under the FMLA. 
The DOL needs to anticipate more of those scenarios in which potential 
conflicts between statutes can occur and advise employers what to do.

          Response to Questions of Senator Enzi by Sandy Boyd

    Question 1. In its March 30, 1993 Comments submitted to the DOL, 
NAM stated the following:
    ``Serious Health Condition should be interpreted as a disabling 
condition when medical leave is taken for an employee's own illness, 
and as requiring an absence of no less than 2 weeks. Any truly serious 
condition would likely require at least 2 weeks anyway.''
    At the Senate Roundtable, you denied taking a position on the 
required length of absence qualifying an employee for FMLA leave. Has 
NAM changed its position on the correct eligibility requirements? If 
so, what specific changes does NAM propose? Please provide statistical 
evidence that your proposals improve the regulations without harming 
FMLA-leave takers under the current regulations.
    Answer 1. After the FMLA was passed in 1993, DOL issued proposed 
regulations for notice and comment. The regulations were finalized in 
1995 and since that time employers subject to the FMLA have been 
covered by those regulations which define seven different ways 
(inpatient care and continuing treatment) in which an individual can 
qualify for having a serious health condition. Manufacturers continue 
to be concerned with the broad definition of serious health condition 
as defined by the regulations and expanded by wage and hour opinion 
letters. Our concerns, post-final regulation, for the past decade, have 
focused on the fact that ``serious'' no longer means ``serious'' and 
that even colds, flu and hang nails qualify for FMLA protection.

    Question 2. The vast majority of panelists at the Senate Roundtable 
agreed that the FMLA has been largely successful and has worked in 
almost all situations. Do you agree that regulatory changes should not 
be made that would negatively affect significant numbers of FMLA leave-
    Answer 2. The vast majority of panelist agreed that the FMLA has 
worked well with respect to the ``family'' portion of the FMLA. There 
was much less agreement on the ``medical'' leave portion, especially 
for employees' own absences. Instead, a variety of panelists discussed 
the problems with the overly broad definition of serious health 
condition, the use of intermittent leave in small increments for 
unscheduled absences and the difficulty in managing absences once FMLA 
protection is invoked. A number of witnesses discussed the disruption, 
cost, loss of productivity and impact on employee morale when fellow 
employees use the FMLA improperly. I am confident that relatively 
modest changes to the FMLA regulations could provide employees with the 
protections to which they are entitled while allowing employers to 
better manage their workplaces.

    Question 3. Would you support comprehensive, methodologically 
rigorous, independent research on the FMLA that would update the 1995 
and 2000 DOL studies?
    Answer 3. Research on this subject should be conducted on a regular 
basis and additional research is always useful. However, there is 
already a body of research available (not to mention the fact that the 
Supreme Court has struck down a portion of the FMLA regulation and 
other circuit courts have conflicting views on other portions of the 
rule) that supports DOL moving forward with a notice and comment 
rulemaking. The call for additional research should not be used as a 
way to avoid or delay DOL from beginning a rulemaking.

         Response to Questions of Senator Kennedy by Jeff Payne

    Question 1. Assuming that no employer would want a sick employee 
handling patients, how would you propose the regulations address 
concerns about under-staffing while simultaneously protecting employees 
with chronic serious health conditions? How do you handle under-
staffing that occurs when employees have minor illnesses?
    Answer 1. The healthcare environment is radically different than 
when FMLA was first promulgated 12 years ago. Manpower shortages facing 
healthcare today did not exist in 1993. Those shortages will, by all 
estimates, continue to exist and indeed be exacerbated for the 
remainder of this decade and beyond. Today's reality: finding capable, 
qualified staff is difficult and results in many unfilled positions. 
When you couple open positions with an employee's chronic absenteeism, 
you create intolerable stresses on a patient care unit.
    A hospital's first priority is to insure the safety of the patient 
is not compromised. The ability to successfully deal with chronic 
absenteeism is essential to that goal. In non-FMLA instances where an 
employee has a poor attendance record, the attendance record in 
question is carefully scrutinized and dealt with through disciplinary 
policies and procedures where appropriate. Most hospitals use a ``no 
fault'' attendance policy--e.g. regardless of why any absence occurs, 
the absences are counted and compared against the policy standard.
    Chronic intermittent absences resulting from approved FMLA leave, 
however, can only be addressed through attempting to cover the absence 
with temporary staff or from an in-house float pool. Using temporary 
staffing replacements for daily absences is challenging and expensive. 
Often called ``per diems'', these premium-priced replacement employees 
are also themselves in short supply, and therefore not a realistic 
option on which a hospital can depend. In addition to ``per diems'' 
hospitals often rely on longer term temporary workers. Many hospitals 
will pay premium bonus dollars (separate and apart from overtime pay) 
to employees who agree to work over, or who work in a unit where 
chronic openings exist.
    These ``travelers'' are also expensive, and require significant 
lead time and complex competency assessments before they are allowed to 
work. Travelers, together with per diem nurses and bonus pay can 
quickly drive up healthcare costs. Eventually the patient shares in 
paying those additional costs incurred by the hospital.
    Another option used by hospital is ``in-house float pools''--groups 
of nurses who are assigned daily to cover openings throughout the 
hospital. Creating an in-house float pool is also difficult because of 
chronic staff shortages. In sporting terminology, in many cases, the 
bench with available replacement players is virtually non-existent.
    It's not just a nursing issue. One hospital I know reports that 
fully 75 percent of their staff in their Respiratory and Environmental 
Services department is FMLA certified. That hospital is experiencing 
well over 100 percent occupancy of their beds, and so support 
personnel, like Environmental Services are absolutely crucial. Chronic 
absences from intermittent leaves impact those department's ability to 
provide vital support services.
    Hospitals need maximum flexibility to respond to chronic 
intermittent absenteeism in order to provide safe and effective patient 

    Question 2. The majority of panelists at the Senate Roundtable 
agreed that the FMLA has been largely successful and has worked in the 
vast majority of situations. Do you agree that regulatory changes 
should not be made that would negatively affect significant numbers of 
FMLA leave-takers?
    Answer 2. We support in general the FMLA law. As mentioned before, 
in the healthcare arena the FMLA provisions in most cases simply 
codified existing hospital leave practices. FMLA's continuous leave 
provisions, while a challenge to staffing, can be managed and planned. 
However, the intermittent leave aspects create problems--the no-notice 
absences, as mentioned in other statements, wreak havoc with staff 
scheduling. Where I work, our experience has been that about 45 percent 
of all of our FMLA leaves of absences are intermittent. (Another ASHHRA 
board member reports her hospital's intermittent percentage is at 65 
percent!). Our labor attorney reports that her billing activity shows 
fully 40 percent of her time with us is spent in dealing with FMLA 
issues. The intermittent leave provisions need to be reviewed.

    Question 3. Would you support comprehensive, methodologically 
rigorous, independent research on the FMLA that would update the 1995 
and 2000 DOL studies?
    Answer 3. Yes.

    Question 4. Please discuss your use of existing FMLA employer 
safeguards. In what percentage of cases do you request second opinions, 
third opinions, and re-certifications? Please also explain the 
procedures you use to investigate alleged employee abuse of FMLA.
    Answer 4. As with most hospitals, my organization strives to 
balance the employee and employer's rights, and uses most of the 
safeguards available. However, the law still contains enough ambiguous 
language to cause significant frustration.
    For example, an employee's failure to produce required/requested 
documentation within the 15 day window stipulated by the law does not 
have clear repercussions. Rather, the regulations on that point are 
vague. Consequently, we feel we have no choice but to give multiple 15 
day extensions. In that instance, clear and unambiguous language should 
be inserted stating a failure to produce documentation within the time 
limit can result in the intermittent leave not being approved.
    Like most hospitals, my organization uses medical re-certifications 
as a significant tool. Almost half (45 percent) of the leaves of 
absence we process are of the intermittent variety, and that is where 
we most often request re-certifications. Below is a summary of the 
variety of ways my organization utilizes FMLA safeguards. These methods 
are similar to other facilities and hospitals:
     Re-certifications--The requirement for a re-certification 
is dependent on what the physician has indicated on the original 
certification document.
     Often the physician does not indicate how long a leave is 
anticipated for the particular ailment. Based on our experience, we 
have created a list of common diagnoses and ailments, and associate 
with each of our own guidelines for determining the length of the leave 
of absence as well as requiring re-certifications.
     In other words, for some medical situations we state the 
absence is approved for 90 days, and requires a recertification every 
30 days during that time, while others we state the absence is approved 
for 45 days with no requirement for a recertification and for yet 
others we may say the absence is an indefinite intermittent situation 
which requires re-certifications every 6 months.
     We as a matter of practice do no ask for second opinions, 
even though we know it is an option, because of the administrative 
hassle and the cost involved. We are concerned with an equal 
application of the law, and feel if we ask for a second opinion for one 
employee, we'd need to do that as a matter of routine for all employees 
similarly situated, and that would be very difficult and costly to 
     If a manager suspects abuse, typically we:
     Meet with the manager to compare records (departmental 
versus benefits). We analyze the absences for suspicious or unusual 
patterns or frequency.
     Contact our labor attorney and review the data.
     Ask for a re-certification if appropriate.
     Sometimes we sponsor departmental meetings to discuss FMLA 
issues and procedures.
    The fact that intermittent leave can be taken in small increments 
of time has compounded the difficult--in accurately determining how 
much of an employee's FMLA time has been used. In theory this should 
help hospitals safeguard against an employee taking more FMLA than 
allowed--and yet the sheer difficulty in tracking intermittent leaves 
in such small increments can render it virtually useless as a 

    Question 5. Do you agree that more employer and employee education 
is needed to guarantee successful implementation of the FMLA? Do you 
believe that you have a solid understanding of your rights and 
responsibilities under the FMLA? How do you educate your workforce 
about the FMLA? Do your employees know their rights and 
responsibilities under the FMLA?
    Answer 5. In almost all cases, hospitals have become FMLA experts 
out of necessity. The complexity of the law and the significant impact 
created by the intermittent leave portion has caused us to dig deeply 
into the nuances and subtleties of the law to determine our 
responsibilities and our exposure. Most hospitals rely on retained 
counsel for guidance, and those firms, too, have become FMLA experts.
    Despite our knowledge, the law continues to confuse due to its 
utter complexity. My organization is as sophisticated and educated as 
any on FMLA issues. Our four full-time benefit counselors are each in 
their own right FMLA experts. Yet even still, for example, we struggle 
with process issues; who needs to do and say what, when between the 
employee, the manager and the benefit counselor to insure that we are 
in compliance with the law, but safeguarding against abuse.
    As with most hospitals, we educate our management and staff as best 
we know how. FMLA issues are included in management training sessions 
and seminars. Bi-weekly and quarterly newsletters run recurring 
articles about the FMLA process. Employees receive detailed packets of 
instructions once they have applied for FMLA through their benefit 
    However, employees also receive information from outside the 
organization from a variety of sources, and not all of the information 
is accurate. For example, some employees continue to labor under the 
impression they are the ones who make the determination as to whether 
or not their situation meets FMLA guidelines.
    And despite how much time we have spent educating our management 
team and our employees, we continue to see and hear misperceptions and 
misunderstandings about the basic law, especially when it comes to 
issues surrounding intermittent leave. For example: a large hospital in 
Ohio reported recently that 400 of the total 1,200 nurses on staff had 
received information and had actually gotten medical certification with 
the understanding that FMLA could be used to avoid overtime. It took a 
lot of time and energy to work through and reeducate the staff about 
this misperception.
    What can help? Clear and concise language that gives clear 
interpretations from the Department of Labor (not interpretations from 
third-party vendors).

        Response to Questions of Senator Enzi by Marie Alexander

    Good morning, Chairman Enzi, Senator Kennedy, and members of the 
committee. My name is Marie Alexander. I am the President and CEO of 
Quova, Inc., a small business in the geolocation technology industry 
based in the Silicon Valley. I have 55 employees. They run the gamut 
from high paid executives to those who are entry-level.

    Question 1. What has been your own experience, or that of your 
company, with the FMLA and its regulations?
    Answer 1. I have employed workers in companies ranging from 25 to 
10,000 employees, in industries ranging from mental health to 
entertainment to high tech. My focus over the last 20 years has been on 
building small entrepreneurial companies into large corporations. In my 
experience as an entrepreneur, a business owner, and an employer of 
long-standing, the FMLA is good for business.
    If I have an employee with a child or family member with a serious 
illness, and this employee is unable to be with that family member when 
needed, they are distracted at work and their productivity suffers. In 
contrast, if they are allowed time to take care of that family member, 
their productivity increases. They know what they have to accomplish 
and--sometimes by working at home, or working extra hours, or skipping 
lunch, or working exceptionally hard--they get it done. And in the end 
I have an extremely loyal employee.
    If I have a seriously ill employee who comes to work, that worker's 
productivity suffers. In addition, a sick worker often spreads illness 
to other workers which in turn leads to further loss in productivity. 
Seriously ill employees cannot be as productive as they would otherwise 
be when in good health. When employees are ill at work, I am paying for 
lower output; this results in a direct cost in wages. I could of course 
fire a sick employee. If I were to do so, however, I would have 
replacement costs: the severance pay for the fired employee, the 
downtime from the lack of someone in the position, the time spent 
recruiting and hiring a new employee, the recruiting fees, the training 
fees, and the lower productivity of a newly hired employee. Allowing an 
employee to either take the leave they need, whether extended or 
intermittent, is far less costly to my business.
    If I have someone who abuses my policies or policies established by 
law, like the FMLA, I have the ability to terminate their employment. I 
may have the expense of documenting and proving abuse, but that cost is 
far less than the cost that comes with allowing someone who is abusing 
my trust and my policies to stay within my employ. The FMLA allows for 
termination. It is not designed to protect those who abuse policies; it 
is designed for those who are productive workers within my employ. 
Moreover, when an employee asserts a right to FMLA and I believe they 
do not qualify for it, the law provides a number of employer safeguards 
in these situations. For example, I can require a doctor's 
certificate--actually, three certificates, from three different 
doctors, if I choose.
    If I create an environment in which my employees can balance their 
work/life needs, then I get exactly out of the relationship exactly 
what I put into the relationship: loyalty and commitment. This loyalty 
exists not only between the employee and the company, but also among 
employees. Work/family policies like the FMLA engender an environment 
of respect and support between employer and employee, and among 
employees. When employees see that you, as an employer, are supportive 
of them, they mirror that same behavior back. If they see that you will 
not tolerate abuse, then they will not abuse.
    Loyal employees plan and work with you to ensure that the needs of 
your business are being met. Many years ago, I was a manager at an 
amusement park. One Friday afternoon, an employee reporting to me 
arrived as expected and performed his job, completing ``set up'' so 
that we could open the park that evening. His set up included putting 
bags in the trash cans, cleaning up excess water on the streets, 
putting new sand in the cigarette butt cans--none of this actually 
critical to the success of an amusement park. Nonetheless, he had 
responsibilities and he made sure he met them. Once his tasks were 
completed, but before his shift was over, he called me and explained 
that he needed to leave. ``My father is a police officer,'' he 
explained, ``and he was shot this morning.'' I told him that he could 
of course have the time off, and that I would have someone cover for 
him. When I told him that I hoped his father would be o.k., his 
response was ``I guess I should have said my father was a police 
officer; he died this morning.'' Most employees are committed to their 
jobs and take their commitments seriously.
    Good managers and employers have few problems with unnecessary 
unscheduled leaves of absence. The positive employee morale that is 
associated with FMLA and other family leave benefits has made absence 
control a mutual responsibility. Employees are fully aware of the 
benefits with which you provide them and appreciate the attention to 
their needs that go with these benefits, and in return, they don't want 
to put you, the employer, in a jam with a last-minute absence.
    I would like to share another story with you. I recently had an 
employee take maternity leave. After using up all sick and paid 
vacation leave, the young woman took 80 unpaid days of leave (16 
weeks). (She received pay for 12 of these weeks through the California 
State Disability Insurance (SDI) and California's Family Paid Leave 
Insurance (FPL) programs). I hired a temporary replacement during her 
leave; this employee turned out to be terrific. When the young woman 
returned to work, I had two people that were trained for that 
position--a wonderful benefit to my business. I was able to take on the 
temporary worker, someone who now already had the skills for the job, 
as a permanent employee. With very little planning, we were able to 
turn an employee's leave into something positive for two employees and 
for the company as a whole. Ultimately there was no negative financial 
impact to Quova. On the contrary, we came out ahead.
    On any given day, I anticipate that some of my employees will need 
time away from their jobs--for illness and for time to care for their 
family. As an employer, I plan and take this into account and build it 
in to my business model. Illness or the need to care for a ill family 
member is inevitable at different points during a workers' life and 
will cause people to miss work. Yes, there may in some instances be a 
loss in productivity which relates back to these illnesses, but medical 
leave and the FMLA are not the root cause of the productivity issue, 
illness is. FMLA is merely the mechanism through which employees are 
protected. The FMLA provides basic provisions for employers to meet 
employees' needs.

    Questions 2 & 3. Are there ways in which the implementation of the 
act might be improved? Given the importance of maintaining a work/life 
balance for all working Americans, what do you believe are the most 
reasonable options to achieve the desired balance?
    Answers 2 & 3. First, I would like to address the changes proposed 
by some groups to the regulations on intermittent leave and serious 
health condition.
    I understand that some groups are proposing a change to the FMLA 
that would require employees who need intermittent leave to take that 
leave in half-day increments rather than shorter increments now 
specified in the regulations. This proposal would actually hurt 
business by reducing productivity. By allowing the increments of FMLA 
to be as short as needed by the employee the law limits the leave's 
impact on the company. If I must require an employee needing 
intermittent leave to take a minimum of 4 hours leave, when that 
employee needs to take only an hour away from their job, this will 
negatively affect my business. No smart business owner would support 
this proposed change.
    I also understand that some groups are proposing a change to the 
FMLA's definition of serious health condition which would, in the end, 
exclude many seriously ill workers from coverage under the law. I find 
this proposal quite troubling. To succeed, businesses need loyal, 
productive employees. This means providing employees with the leave 
they need to address serious illnesses they or their families face.
    Part of the argument for this change seems to be that guidelines on 
serious health condition are unclear and that employers feel that this 
leads to some employees unfairly receiving FMLA leave. In my 
experience, the FMLA provides clear guidance on how to determine 
whether your employee has a serious health condition. It also provides 
satisfactory employer safeguards instances when disagreements arise. 
For example, I can require that an employee provide a medical 
certificate from a doctor that they meet the conditions of the 
definition. I am not a doctor; if a doctor reports that my employee has 
a serious chronic condition, I will work with the doctor's assessment 
and provide my employee with the necessary leave. I will plan as best 
as I can. And if it changes dramatically and I suspect abuse, I have 
other protections under the law. As an employer, I see no benefit to my 
business in a narrowing of the definition of serious health condition. 
On the contrary, doing so will only limit the many benefits of FMLA 
leave to employees, families, and employers.

                           IMPROVING THE FMLA

    The FMLA could be improved if employers were encouraged to share 
stories of success, ask questions, and learn the basics about the FMLA. 
An effort to educate employers about their employer protections and 
employees about their rights would be an improvement. There is a great 
deal of ignorance which exists on the part of employees as well as 
employers surrounding the FMLA. Before any changes are made, perhaps 
more people should know what it really is. Proposals thus far indicate 
that employers and employees need to be educated about the law, not 
that the law needs to be fixed.
    Research should also be conducted to identify viable support 
systems for small companies so that they can more successfully provide 
work/life benefits to their employees while maintaining business 
efficiency. One example of such a support system which would be 
reasonably inexpensive is a system of affiliate networks for matching 
temporary employees with companies affected by an increased need for 
employee absence related to work/life balance issues.
    The FMLA could be improved by lowering the threshold of employees 
required for an employer to be FMLA eligible. I think it is possible 
for companies that are smaller than the defined requirements to provide 
this important benefit to employees. However, there are small companies 
for whom this could cause a detrimental effect. Therefore, it would be 
important to provide a provision when the size is decreased through 
which a company could file for exemption--but only when they could 
adequately prove a negative impact on the company. With this said, I do 
believe that most employers will experience no negative impact.
    The FMLA could be improved by including partial wage replacement 
for employees on leave. Currently California employees receive partial 
income via short-term disability and family leave insurance pools. Paid 
leave is incredibly important to the economic stability of my 
workforce. Paid leave insurance pools like California's help take the 
burden of individual employers and are inexpensive for business owners. 
We need more policies like California's short-term disability and paid 
family leave.

       Response to Questions of Senator Enzi by Susan O'Flaherty

    Question 1. At the Roundtable, you stated that the FMLA has worked 
well in 95 percent of situations where employees need to take FMLA 
leave, but that 5 percent of employees abuse it. Is there any 
statistical evidence for these figures, or were you simply using them 
to make the point that the FMLA is appropriately utilized in the vast 
majority of situations?
    Answer 1. The percentage that I used was to make the point that 
FMLA is appropriately utilized in the majority of situations. It may be 
a smaller percentage of cases, but I think because there is a 
significant issue being brought forward by employers of all types of 
business and of all sizes, it should be addressed. It was apparent that 
unscheduled, intermittent leave and the loose definition of serious 
health condition are the parts of the regulations that cause 
administrative difficulties for employers and morale problems for other 

    Question 2. The vast majority of panelists at the Senate Roundtable 
agreed that the FMLA has been largely successful and has worked in 
almost all situations. Do you agree that regulatory changes should not 
be made that would negatively affect significant numbers of FMLA leave-
    Answer 2. At the Roundtable it was clearly demonstrated that the 
majority of problems with FMLA are around the loose definition of 
serious health condition and the use of unscheduled intermittent FMLA. 
Both of these problems need regulatory clarification. Changes should be 
made to clearly define and outline what is proper usage and what can be 
done to limit abuse. The abuse is problematic for employers, but also 
can have a negative effect on the other employees who work with someone 
who abuses it. These changes and alterations should not affect those 
who use it properly. Clear definitions and guidelines are never a 
detriment, but an enhancement.

    Question 3. Would you support comprehensive, methodologically 
rigorous, independent research on the FMLA that would update the 1995 
and 2000 DOL studies?
    Answer 3. I would support regulatory clarifications of the 
definition of serious health condition and the use of unscheduled 
intermittent FMLA leave. In addition to these needed regulatory 
clarifications, I would support research that should include not just 
analysts who look at studies and reports, but include people who 
actually administer and work with the FMLA. People who actually 
understand it from an application and administrative viewpoint.

    Question 4. Please discuss your use of existing FMLA employer 
safeguards. In what percentage of cases do you request second opinions, 
third opinions, and re-certifications? Please also explain the 
procedures you use to investigate alleged employee abuse of FMLA.
    Answer 4. We do not have many problems or concerns with continuous 
FMLA leaves. The biggest problem we have in this respect is 
falsification of a document. On average we have one a month that has 
been altered. We do go to the provider and they will work with us to 
say that no one from their office filled out the forms. Second and 
third opinions work the best with continuous FMLA leaves, if you have 
issues that are of concern. We do a small percentage of second 
opinions. I have not seen a third opinion in the recent past. For 
intermittent leave, second and third opinions are not as useful. Since 
it is an intermittent or chronic condition, the employee is not usually 
ill when they attend the second/third opinion. The exam is based purely 
on subjective history from the employee or first physician. 
Recertification is what we use for possible problems with intermittent 
leave. What we hear numerous times from employees as we are 
recertifying is the following statement:, ``go ahead and recertify, my 
doctor will approve anything that I want.'' To investigate alleged 
abuse, we require the managers to give the FMLA unit the pattern they 
suspect of abuse. We tell them it cannot be just a hunch or one 
individual day that just happened to occur. The managers have to give 
the FMLA unit the days of the week and the dates and hours used over a 
30-day period. This way we can look at the information we had on 
approval to see if it truly is an alleged abuse or just a manager's 
reaction. If we determine that it appears inappropriate, we begin the 
recertification process. In the case of those employees who request a 
vacation day and are turned down by their manager, and then on the day 
in question call in and take an FMLA day we try another stance. On 
these, since there probably is no lingering pattern at that time, we 
cannot deny the day as who is to say they happen to have their medical 
problem suddenly incapacitate them on that exact date. We do, however, 
speak to the employee afterwards and say you had the FMLA day as 
requested. We tell them that we do understand and we try to give the 
employee the benefit of the doubt, however, we let them know that we 
are aware that they had earlier requested a vacation day that could not 
be granted on that day. We explain to them appropriate and 
inappropriate use of FMLA.

    Question 5. Do you agree that more employer and employee education 
is needed to guarantee successful implementation of the FMLA? Do you 
believe that you have a solid understanding of your rights and 
responsibilities under the FMLA as an employer? How do you educate your 
workforce about the FMLA? Do your employees know their rights and 
responsibilities under the FMLA?
    Answer 5. I think education is valuable. We frequently provide 
education to both employees and managers. Both employees and managers 
call the FMLA unit for questions and assistance. I think that the 
medical community could also use education regarding FMLA. Some 
physicians and their offices lack a true understanding of their part in 
FMLA and how it affects their patients and their patient's jobs. We 
have had physicians' offices refuse to fill out paperwork for 
employees. We have had to call the provider and discuss FMLA with them 
to get them to fill it out. We also have providers that let the 
employees themselves fill out the medical paperwork and then they just 
sign it. We have a solid understanding of our rights and 
responsibilities under FMLA. We constantly work with our human resource 
legal department for updates regarding any issues on FMLA, and they 
provide training for the staff. The staff that administers the FMLA 
determinations is sent to trainings and seminars to keep current. Our 
employees have the standard notifications, but we are also here to help 
them when they need assistance in dealing with different aspects of 
    Besides speaking as an ``employer'', I am also an employee myself. 
I am a nurse, I am a mother of a child with asthma, and I have an 
elderly mother who is a cancer survivor. I am attuned to the necessity 
of FMLA, but I also see people who use FMLA as just a way of getting an 
extra 12 weeks off a year. We try to assist those who are in need of 
FMLA get the protection they deserve. We also try to manage and educate 
those who allegedly use it inappropriately, as this negatively impacts 
on those who do need and use it appropriately.

      Response to Questions of Senator Kennedy by Cheryl Barbanel

    Question 1. Assuming that no employer would want a sick employee 
handling patients, how would you address concerns about under-staffing 
while simultaneously protecting employees with chronic serious health 
conditions? How do you handle under-staffing that occurs when employees 
have minor illnesses?
    Answer 1. Understaffing as a result of FMLA leave for a chronic 
medical condition can be staffed by accounting for additional necessary 
staff if knowing that the person will be out intermittently or for a 
continuous period of time. Intermittent leave for health conditions is 
more difficult to staff for especially when taken without notice. This 
often leaves the remaining staff with additional responsibilities. In 
some highly specialized areas we are sometimes able to get additional 
coverage at high prices with temporary employment agencies specializing 
in highly trained individuals.

    Question 2. During the Roundtable, you stated that there is 
``employee, employer, and doctor abuse.'' Please explain what you mean 
when you say that there is ``employer abuse'' of FMLA. Please also cite 
examples of this abuse and to what extent the regulations provided 
sufficient remedies for addressing it.
    Answer 2. I am representing the American College of Occupational & 
Environmental Medicine. In that role I have learned from my colleagues 
that early on after the introduction of the FMLA rule some employers 
had denied claims around intermittent leave for chronic medical 
conditions, which has been remedied at this time.
    Employers would be helped by a better definition of what defines a 
serious medical condition. In certain employees as one condition is 
resolved another one emerges to take its place resulting a shortened 
work year on a continuous basis. It is also very difficult to track 
intermittent leave especially in the short intervals allowed.

    Question 3. The vast majority of panelists at the Senate Roundtable 
agreed that the FMLA has been largely successful and has worked in the 
vast majority of situations. Do you agree that regulatory changes 
should not be made that would negatively affect significant numbers of 
FMLA leave-takers?
    Answer 3. When FMLA works well, I am usually not involved in the 
cases. The area that needs improvement is intermittent leave for minor 
medical conditions that are temporary, but often go on indefinitely. I 
think that changes can be made that will allow employers to intervene 
in managing illness as they are allowed to do in workers' compensation 
by directing care in some instances so that the employee is directed to 
more effective care. Right now the employer is left on the outside with 
virtually no ability to direct care. In many instances the primary care 
provider is being directed by the patient to write the excuse note and 
at risk for losing the patient and capitation payment if he/she does 
not do it.
    We know from many studies the important benefits of work. We know 
that the longer someone is out of work that the less likely they are to 
return and be permanently disabled. By the time someone is out of work 
for 3 months they have only a 50 percent chance of ever returning to 
the job. Those out of work for 12 months have only a 1-2 percent chance 
of ever returning to work. Patients can begin developing a disabled 
mind set after as little as 2-4 weeks off and this seems to be more 
related to conditions that are diagnosed by the patient reporting 
rather than injuries that have a defined course of recovery.
    Fewer than 10 percent of work-related injuries require a person to 
take more than a couple of days off from work according to a survey of 
occupational physicians. This contrasts with the 24 percent of injured 
workers who receive temporary disability benefits. This suggests that 
up to 80 percent of temporary medical leave is unnecessary.
    One study on workers compensation claims showed that 25 percent of 
workers' compensation claims accounted for 97 percent of all costs. The 
high cost claims are not all severe injuries, but are musculoskeletal 
claims, often minor, but end up with prolonged absence from work 
without objective findings.
    The term delayed return to work is applied to patients with 
prolonged recovery that is disproportionate to objective clinical 
findings. These patients suffer physical, emotional, and financial 
hardship as a result of their absence from work. Many factors that 
appear to be predictive of recovery are non--biologic. It appears that 
the interaction of the worker in the work environment such as job 
satisfaction, and perceived stress, is key. There are a number of 
psychological factors including personality traits, perceptions of the 
social environment, and attitudes or beliefs about illness, as well as 
history of psychiatric diagnoses and history of sexual abuse that have 
been correlated with delayed recovery. Underlying depression is often 
an important etiologic factor in delayed recovery.
    Delayed recovery usually involves chronic pain, although other 
subjective symptoms such as fatigue or paresthesias may also occur. 
Management may be difficult.
    Current evidence suggests that understanding delayed recovery, 
chronic pain, and disability requires a biopsychosocial model, which 
reflects a complex interaction between physical, emotional, social and 
economic variables.
    Social and psychological forces can counteract the desire to get 
better and reinforce the disabled role. An individual is likely to 
amplify and cling to a symptom (a behavior known as somatization) if 
the disabled role results in secondary gain. Three types of secondary 
gain occur: sympathy, attention, and support (including financial); 
being excused from responsibilities, obligations, duties, challenges, 
and ability to influence important people by virtue of their acceptance 
of the individual as sick/disabled. This is amplified by any system 
that awards benefits contingent on proving disability.
    Somatization is a common reflection of emotional distress and 
present with a preoccupation with an unconscious exaggeration of 
physical symptoms. Somatization explains much of what physicians name 
``non-specific pain'' in the low back, neck, hand and chest. It is 
estimated that 50-70 percent of patients with a psychiatric disorder 
present with somatic (physical) symptoms that obscure the diagnosis 
(most commonly depression) from the physician's point of view.
    Differentiating malingering from a patient with symptom 
magnification and chronic illness behavior is difficult and both have 
inconsistency between history, physical examination and performance of 
standardized tasks.

    Question 4. Would you support comprehensive, methodologically 
rigorous, independent research on the FMLA that would update the 1995 
and 2000 DOL studies?
    Answer 4. Yes

    Question 5. Please discuss your use of existing FMLA employer 
safeguards. In what percentage of cases do you request second opinions, 
third opinions, and re-certifications? Please also explain the 
procedures you use to investigate alleged employee abuse of FMLA.
    Answer 5. The only case we were successful in was a case where the 
employee asked for leave for a death of the same person twice. There 
was no second opinion in the case. At my other employer only one case 
is recalled that a second opinion was requested in the last 10 years. 
It is difficult in assessing FMLA cases because the employer does not 
have the ability to have full information regarding the alleged medical 
condition claimed. In most cases the employers will not know what the 
diagnosed medical condition is and even if they did there is no 
definition of a serious medical condition or anyway to manage the 
condition as is allowed with workers' compensation claims. Employers 
are reluctant to investigate claims due to this lack of information. 
The path for refuting an FMLA claim is onerous, expensive and risky 
both in terms of its effect on the employee-employer relationship and 
litigating in the absence of full information.
    Once a claim is litigated the resolution is usually delayed and 
during this time an employee is not motivated to return to work because 
of concerns that working will adversely affect the claim. The employee 
is evaluated by multiple physicians who offer a wide variety of 
diagnostic tests, which tends to reinforce the employee's belief that 
there is something wrong. There is a tendency for the employees to 
amplify their subjective complaints when they view the physician as 
having administrative power to determine their benefits. The 
observation that patients often recover quickly after their case is 
settled provides further evidence that current compensation laws foster 
    One of the major areas of abuse is claims of stress. Doctors cannot 
explain why a person needs to take time off from work due to stress. 
There is no scientific basis in a stress claim to suggest that time off 
is effective treatment. If there are work related issues that are the 
cause of some of the stress, they tend not to get resolved as the 
employer never gets direct information on the exact nature of the 

    Question 6. Do you agree that more employer and employee education 
is needed to guarantee successful implementation of the FMLA? Do you 
believe that you have a solid understanding of your rights and 
responsibilities under the FMLA as an employer? How do you educate your 
workforce about the FMLA? Do your employees know their rights and 
responsibilities under the FMLA?
    Answer 6. There is sufficient employee and employer information 
regarding FMLA, but there needs to be better definition as to what 
constitutes a serious health condition for an employee or their family 
members under FMLA and an opportunity for employers to direct medical 
care in some instances. The law is a noble law in its intention, but it 
needs to be tightened up to prevent malingerers from abusing the 
system, and misdiagnosis and inappropriate treatments.
    Treating physicians need education in return to work. Physicians 
are often not trained in disability prevention and management. When 
patients have chronic physical complaints physicians typically focus on 
the physical complaints and ignore the non-medical factors that may be 
fostering illness behavior. Ignoring the psychosocial determinants of 
illness, the untrained provider prescribes more time off from work. 
This common therapeutic pattern may actually prolong recovery and 
reinforce the sick role. If treatment goals are focused on alleviation 
of symptoms rather than on functional capacity, there is an increased 
risk that the patient will begin a downward spiral from anger and 
helplessness to depression and withdrawal, loss of identity, and 
finally into the sick role and chronic disability.
    Physicians need to:
    1. Determine specific psychological and behavioral issues related 
to the patient's pain behavior and disability.
    2. Provide insight on aspects of the patient's history and current 
situation with bearing on the delayed recovery.
    3. Recommend appropriate treatment goals and interventions.


    Letz, G, Christian JH, Tierman, SM: Disability Prevention & 
Management. Current Occupational & Environmental Medicine, (3rd ) 
LaDou, J (ed.), Lange Medical Books/McGraw-Hill, 2004.

      Response to Questions of Senator Kennedy by Laurie Dohnalek

    Question 1. Assuming that no employer would want a sick employee 
handling patients, how would you address concerns about under-staffing 
while simultaneously protecting employees with chronic serious health 
conditions? How do you handle under-staffing that occurs when employees 
have minor illnesses?
    Answer 1. In covering for short term illnesses of less than a \1/2\ 
day (i.e., Dr's appointments, etc.) many times the other members of the 
staff absorb the additional work. Patient care is a priority, at times, 
other tasks/accomplishments (i.e., Management documentation, etc.) are 
postponed to meet the immediate need. To staff for intermittent, full 
day absences, other staff will be asked to work additional shifts which 
may include overtime shifts. Another option may be agency nurses or 
utilizing staff from other departments/units if there is extra. Long 
term absences may be covered by a ``traveling'' nurse with a contract 
agreement. Most of these options carry the burden of increasing costs 
and decreasing quality along with uncertainty. Given the nursing 
shortage there is typically hours of administrative work to possibly 
obtain the additional manpower needed to meet basic staffing 

    Question 2. During the Senate Roundtable, you stated that nurses 
require 6 months training to care for specialized patients. Do you 
agree that FMLA helps retain trained and valuable employees?
    Answer 2. Yes, I agree with that statement, but it does come with a 
price. The other staff may get frustrated and this could lead to 

    Question 3. The vast majority of panelists at the Senate Roundtable 
agreed that the FMLA has been largely successful and has worked in 
almost all situations. Do you agree that regulatory changes should not 
be made that would negatively affect significant numbers of FMLA leave-
    Answer 3. I don't know who the significant number of FMLA leave-
takers are. If the significant numbers are intermittent FMLA leave-
takers than I feel that changes need to be made to the existing 
regulations that will ease the employer's burden of accommodation.

    Question 4. Would you support comprehensive, methodologically 
rigorous, independent research on the FMLA that would update the 1995 
and 2000 DOL studies?
    Answer 4. Yes, I would.

    Question 5. Please discuss your use of existing FMLA employer 
safeguards. In what percentage of cases do you request second opinions, 
third opinions, and re-certifications? Please also explain the 
procedures you use to investigate alleged employee abuse of FMLA.
    Answer 5. We have all requests for medical FMLA reviewed by our 
Employee Health Office. We do not routinely ask for second opinions but 
Employee Health may ask the employees physician for a clarification on 
a certain issue. If abuse were suspected we would ask for a second 

    Question 6. Do you agree that more employer and employee education 
is needed to guarantee successful implementation of the FMLA? Do you 
believe that you, as an employer, have a solid understanding of your 
rights and responsibilities under the FMLA? How do you educate your 
workforce about the FMLA? Do your employees know their rights and 
responsibilities under the FMLA?
    Answer 6. I would agree that education on FMLA is always 
beneficial. As an employer we believe we have a good understanding of 
our rights and responsibilities. Employee's rights are discussed at 
orientation, in the Employee handbook and in our Human Resources Policy 
Manual. We also have educational sessions directly and indirectly 
related to FMLA for managers.

      Response to Questions of Senator Kennedy by Janemarie Mulvey

    Thank you Senator Kennedy for your questions regarding the 
Employment Policy Foundation's recent study entitled ``The Costs and 
Characteristics of Family and Medical Leave.'' My responses below are 
intended to supplement my earlier oral and written testimony for the 
FMLA Roundtable on June 23, 2005. Since some of the questions are 
interrelated, I am addressing them together.

    Questions 1 through 3. Relate to the size and statistical 
significance of the sample and the relationship of EPF findings to 
Department of Labor 2000 study.
    Answers 1 through 3. EPF Response: The Employment Policy Foundation 
FMLA survey was based on responses from 110 companies analyzing the 
behavior of 500,000 workers. The intent of the EPF survey was to 
develop preliminary data regarding the prevalence and duration of FMLA 
leave especially with respect to unscheduled intermittent leave. This 
information was intended to contribute to the current discussion 
regarding potential changes to the FMLA regulations. Thus, we believe 
our findings should be used to justify additional research and 
discussion in this area.
    The Department of Labor study estimated the prevalence, duration 
and use of intermittent leave through a telephone survey of 2,558 
workers. The key difference in these surveys was that we asked 
employers the characteristics of their leave takers, rather than 
general qualitative information about FMLA compliance. The 2000 DOL 
Employee survey asked employees directly. Their survey represented 
prevalence across a population and not for a given firm.
    Interestingly, our findings regarding prevalence, duration and use 
of intermittent leave are not substantially different from the 2000 
study where comparable. In terms of duration, we asked for average (and 
not median) leave duration for company and the DOL study captured 
median duration. While these are not directly comparable, averages do 
tend to exceed medians due to outliers. However, our prevalence numbers 
are in fact lower which suggests we are underestimating, not 
overestimating the extent of the FMLA leave. (See Table 1.) Thus, our 
study possibly underestimates and not overestimates the costs of this 
leave to employers.

 Table 1: Comparison of EPF FMLA Findings with those from 2000 DOL Study
                                  EPF 2004 (Employer  DOL 2000 (Employee
                                        Survey)             Survey)
Prevalence of FMLA Leave........  14.5..............  16.5
Duration........................  Average 14.5 days.  Median 10 days
Intermittent leave..............  30% (< 5 days)....  27.8% (repeatedly
                                                       taking leave for
                                                       few hours or few
                                  20% (1day or less)  ..................

    Questions 4 through 8. Relate to the estimate of costs of 
replacement labor and productivity.
    Answers 4 through 8. EPF Response: Our cost estimates include both 
the direct costs of continuation of health benefits and net replacement 
costs of labor. GAO and others recognize these costs as potential 
direct costs. Nevertheless, economists often include indirect costs 
such as those associated with lost productivity for workers who are not 
replaced. We also include these lost productivity costs into our 
    Our replacement cost represents the dollar difference between the 
costs of hiring temporary labor (which costs more than regular full--
time employees because of administrative costs paid to staffing firms) 
relative to the wage of the workers taking leave. This wage is based on 
average wages by industry. This difference represents the replacement 
cost. Thus, EPF's study does account for employers not paying a leave-
taker's wage (if the leave is unpaid).
    Productivity measures are based on the economist's definition of 
the ratio of output for a given industry divided by hours worked and 
calculated for those workers who take leave. This data is derived by 
industry using data from Bureau of Economic Analysis (BEA). While there 
are studies showing that workers who come to work sick or preoccupied 
cost employers in terms of lost productivity, it is illogical to 
conclude that if they do not come to work the employer experiences a 
gain in productivity (or productivity savings) because the employer 
gains no additional output from them taking leave. In either case, the 
employer still experiences lost productivity.
    It is important to note that we do not account for possible 
productivity differences that occur between replacement labor and 
permanent workers. Studies show that temporary employees who are thrust 
into a new environment are not as productive as permanent workers are, 
who have had sufficient tenure and training from their employer.
    In addition, EPF's cost estimates are conservative because they do 
not include the administrative costs of complying with FMLA, which 
could be rather steep. A recent WorldatWork survey found that most 
organizations are spending between 30 minutes and 2 hours of 
Administrative time per FMLA leave episode to provide notice, determine 
eligibility, request and review documentation, and request a second 
and/or third opinion. In 2002, EPF estimated an average annual 
expenditure of $825,000 per employer, totaling $203 to $247 million for 
the administrative costs of complying with FMLA.
    Our costs also do not include the indirect economic or multiplier 
effects that would account for the total effect of FMLA leave on the 
Nation's economy. These effects could nearly double the provided cost 

    Question 9. Asks how we account for workers who take leave for 
serious health conditions regardless of FMLA coverage.
    Answer 9. Our study only accounted for employees who took FMLA 

    Question 10. Asks how we measured the cost of ``abuse.''
    Answer 10. Abuse occurs when individuals use FMLA leave for health 
conditions that are not ``serious,'' as that term is defined in the 
statute and the regulations. This leave is frequent in nature, short-
term and unscheduled. My written testimony does not estimate the cost 
of abuse. During my oral testimony, I stated that anecdotal evidence 
suggests that much of the unscheduled absences are abuse. The EPF study 
shows that 27 percent of FMLA leave are for chronic health conditions 
(that may or may not be ``serious.'') Further, the EPF study measures 
the prevalence of unscheduled absences. Most notably, it found that 
over 50 percent of leave takers did not give notice a day before leave 
is taken. This lack of notice makes it difficult for employers to 
adjust their employees' work schedules to accommodate the leave taker's 
    The $21 billion cost necessarily includes any instances of abuse, 
because it includes all FMLA leave taken.
    Thank you for inviting me to participate in this hearing.

      Response to Questions of Senator Kennedy by Robert Prybutok

    Question 1. You proposed raising the eligibility requirements above 
the current level of 50 employees. Since the passage of the FMLA, some 
jurisdictions, such as Oregon (25 employees) and Washington, DC (20 
employees), have lowered their eligibility requirements and have not 
reported any significant problems with those levels. Why do you support 
a change in the eligibility requirements, and what statistical evidence 
do you have that such a change is needed?
    Answer 1. As a small company we are flexible in administering 
employee leave requirements and would do what is required regardless of 
FMLA legislation, as we had done prior to FMLA impacting our business. 
The primary reason to change eligibility requirements from 50 to 100 or 
more employees is to remove the administrative burden associated with 
FMLA legislative requirements. A more significant problem with FMLA 
documentation is with intermittent leave and documenting intermittent 
leave. We do not have statistical evidence available to support this 
change however our experience is that small companies do not have HR 
duties assigned to a dedicated individual. Typically, our experience is 
this does not occur until companies approach or exceed 100 employees.
    The exposure that small companies face is with potential legal 
suits over FMLA that cannot be adequately defended without detailed 
    A compromise may be to have FMLA apply to small companies but only 
burden larger companies with the administrative record keeping 

    Question 2. The vast majority of panelists at the Senate Roundtable 
agreed that the FMLA has been largely successful and has worked in 
almost all situations. Do you agree that regulatory changes should not 
be made that would negatively affect significant numbers of FMLA leave-
    Answer 2. This question cannot be answered without an understanding 
of the statistical history of who are the significant numbers of FMLA 
leave takers. It appears from comments at the conference, intermittent 
leave presents the most difficult management and administrative burden 
to all companies. It appears from comments that a compromise on 
intermittent leave would be to allow leave to be taken for some 
reasonable ``increment'' of work that would be defined by the company, 
independent of the smallest unit of time captured by a companies 
payroll system. There also appears to be issues with employees who call 
out in the morning to care for dependents or themselves. It is unclear 
what documentation is required under FMLA for these situations. 
Additional documentation and a modification of the work interval for 
intermittent leave could be defined as a ``negative impact'' to FMLA 
leave takers but not necessarily negative to the FMLA program or its 

    Question 3. Would you support comprehensive, methodologically 
rigorous, independent research on the FMLA that would update the 1995 
and 2000 DOL studies?
    Answer 3. We would support a comprehensive and independent research 
on FMLA that would be utilizing current data.

    Question 4. Please discuss your use of existing FMLA employer 
safeguards. In what percentage of cases do you request second opinions, 
third opinions, and re-certifications? Please also explain the 
procedures you use to investigate alleged employee abuse of FMLA.
    Answer 4. We have not experienced excessive abuse of FMLA. There 
has been no need to request second opinions, third opinions or re-
certifications. Prior problems with the FMLA involved employees not 
returning to work. The company has created guidelines for requesting 
leave. Employees are required to provide 30 days notice for leave such 
as birth, or planned medical treatment. A leave grant for medical 
conditions must be supported by written medical evaluation and 
submitted to the human resources representative.

    Question 5. Do you agree that more employer and employee education 
is needed to guarantee successful implementation of the FMLA? Do you 
believe that you have a solid understanding of your rights and 
responsibilities under the FMLA as an employer? How do you educate your 
workforce about the FMLA? Do your employees know their rights and 
responsibilities under the FMLA?
    Answer 5. FMLA, as the law is written, is very difficult to 
understand for the average businessperson. English interpretation with 
case examples is a practical approach to our understanding of the law. 
Although we feel we understand the law, when we are in doubt about 
certain aspects we contact legal counsel. We provide information about 
FMLA to our employees during our new employee orientation. We also 
provide a company information manual that includes information on FMLA 
and we post required Federal posters that outline the rights of 
employees. A brief orientation coupled with the brevity of information 
posted does not ensure employees understand both their rights and 
responsibilities under FMLA. Typically when a FMLA issue arises re-
education and clarification is required.

       Response to Questions of Senator Kennedy by Jamie Marsden

    Question 1. You commented on the difficulty that physicians have 
with the DOL Medical Certification Form. What specific difficulties 
have you observed? What improvements to the forms would you propose?
    Answer 1. I would clarify in stating that the process to obtain 
timely certification regarding an employee's serious health condition 
from healthcare providers is difficult. The DOL certification form 
itself is several pages long and is often submitted incomplete to the 
employer. In these circumstances, it often lacks sufficient information 
regarding the employee's condition and need for leave. If the 
healthcare provider would complete the certification form legibly and 
accurately, it would be possible for employers and human resource 
professionals to confidently grant employees' leave requests.
    In addition, the form itself should be updated and revised as it is 
outdated. I would suggest that the form be available on-line for the 
healthcare provider to complete all required fields. It could then be 
printed and signed so that the employee could submit the form to the HR 

    Question 2. The vast majority of panelists at the Senate Roundtable 
agreed that the FMLA has been largely successful and has worked in 
almost all situations. Do you agree that regulatory changes should not 
be made that would negatively affect significant numbers of FMLA leave-
    Answer 2. The Family and Medical Leave Act is an important law that 
provides vital protections. I agree that the family leave provisions of 
the regulations have worked very well and have benefited millions of 
employees and their families nationwide. The medical leave provisions 
of the regulations tell a different story. These regulations are 
confusing and easily misunderstood. In addition, there are two 
conflicting DOL Wage and Hour Opinion Letters (1995 and 1996) and 
nearly 70 judicial decisions that have questioned the validity of the 
regulations. This makes clear that it is necessary to review and 
clarify the existing framework so that medical leave achieves the same 
promise that family leave already has.

    Question 3. Would you support comprehensive, methodologically 
rigorous, independent research on the FMLA that would update the 1995 
and 2000 DOL studies?
    Answer 3. The DOL survey should be updated in an unbiased manner, 
yet should not be used as a tool to further delay the rulemaking 
process. The DOL has more than enough evidence, anecdotal and 
otherwise, to execute a rulemaking. Since 1995, nine Congressional 
hearings have provided clear evidence that a review of the regulations 
is necessary. In addition, the 2002 Supreme Court case in Ragsdale v. 
Wolverine Worldwide Inc. invalidated the penalty provision found in 
Section 825.700(a) of the regulations.

    Question 4. Please discuss your use of existing FMLA employer 
safeguards. In what percentage of cases do you request second opinions, 
third opinions, and re-certifications? Please also explain the 
procedures you use to investigate alleged employee abuse of FMLA.
    Answer 4. Second opinions provide limited assurance that the 
employee is using their leave for its intended purpose. There have been 
times where I've sought a second opinion when concerns of abuse arise. 
However, our organization very rarely seeks second opinions. On 
average, I believe it is a very low percentage of cases (estimated <1 
percent) and third opinions are never sought. Our human resource 
department is very small, and in order to seek second opinions, a 
significant amount of staff time and resources are required to find the 
appropriate doctor to conduct a second opinion. The City of Gillette, 
Wyoming does not have a doctor that it uses regularly. Doctors in our 
area, like in many other areas, are very busy and often times the only 
specialist available to the City of Gillette is the healthcare provider 
that the employee has already seen. Also, in a small community such as 
ours, doctors know each other well, so in order to obtain an objective 
second opinion, I must look outside the city to the nearest community, 
which is 125 miles away. Second opinions, if sought, are costly, and 
only add to the normal costs for my organization because of the 
expenses associated with the employee's travel to and from this 
    Re-certification is typically the most frequent request my 
organization makes. Requesting clarification on what is written on 
certifications of health from the primary healthcare professional 
occurs in perhaps one out of ten cases. Re-certification is usually 
associated with our policy that employees provide documentation if 
there is a change in condition or the employee plans to return to work.
    I do not believe that second and third opinions are adequate tools 
for identifying employee misuse of leave. Most often, allegations of 
employee abuse arise after the condition has been certified by a 
healthcare provider. After FMLA ``job protected'' leave has been 
granted, it is very difficult for the employer and the human resource 
department to question the manner in which the employee is using the 
    Normally, indications of inappropriate use of FMLA leave come from 
other employees who see and/or communicate with the employees taking 
FMLA leave. This often occurs if employees come into contact with each 
other outside the workplace. Many times it comes directly from the 
employee when they discuss how they utilized their leave after they 
have returned to work. It is still difficult to verify employee misuse 
of FMLA leave, especially when the organization learns about misuse 
after the fact and employers have very few avenues to pursue if abuse 
is discovered after-the-fact. In addition, due to Heath Insurance 
Portability and Accountability Act of 1996 privacy concerns, the 
willingness of the healthcare provider to share any information with an 
employer is very limited, even with the employee's permission.
    I have used various procedures to investigate potential abuse 
including interviewing other employees regarding their concern that an 
employee is abusing FMLA leave, requesting an employee to provide re-
certification, and counseling an employee on FMLA leave.
    Unfortunately, I have found that employees who have documented 
performance problems and face disciplinary action are those who most 
frequently misuse FMLA leave. FMLA becomes the formula to protect the 
employee's job. Employees seek this avenue because employers are 
fearful of taking any adverse employment action against employees while 
they are on FMLA leave. Other employees recognize those who take 
advantage of the system, creating morale issues in the workplace. As a 
human resource professional acting on behalf of my organization, I 
often feel my hands are tied and no avenue, within the regulations 
exists to adequately resolve these types of issues.

    Question 5. Do you agree that more employer and employee education 
is needed to guarantee successful implementation of the FMLA? Do you 
believe that you have a solid understanding of your rights and 
responsibilities under the FMLA as an employer? How do you educate your 
workforce about the FMLA? Do your employees know their rights and 
responsibilities under the FMLA?
    Answer 5. Training opportunities are always beneficial, but 
training alone does not resolve or curtail employer and employee 
confusions or employee misuse of FMLA leave. The only solution is for 
the U.S. DOL to issue narrow regulatory corrections that allow 
employers to manage absenteeism.
    As a human resource professional with more than 9 years of 
experience, I have a strong understanding of employer responsibilities 
and the rights entitled to employees under FMLA. The organizations that 
I have served during my career have made it a priority to ensure that I 
had sufficient training and education regarding the FMLA and its 
regulations. However, the regulations themselves do not provide clear 
guidance and are in need of clarification.
    My organization provides employees with written materials as well 
as notifications of rights when requests for FMLA leave are made. 
Supervisors receive periodic training on their obligations under the 
law. Our policy is that when an employee has been out for 3 days, 
written notification is sent to inform them of their potential 
eligibility for this leave. We again include notification of the 
employee's FMLA rights and responsibilities. We also have a system in 
place to keep employees informed as to the status of their leave. We 
actively encourage employees to contact HR when they have questions 
regarding FMLA leave. Many employees who have never used FMLA leave 
often seek assistance from our department.

         American Organization of Nurse Executives,
                                     Washington, D.C. 2004,
                                                     June 23, 2005.
Hon. Michael B. Enzi,
Committee on Health, Education, Labor, and Pension,
U.S. Senate,
Washington, D.C. 20510.

Hon. Edward M. Kennedy,
Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, D.C. 20510.
    Dear Chairman Enzi: On behalf of the over 4,800 members of the 
American Organization of Nurse Executives (AONE) we welcome the 
opportunity to participate in the June 23rd Roundtable entitled: ``The 
Family Medical Leave Act: A Dozen Years of Experience.'' Our 
representative for this important discussion is Laurie J. Dohnalek, RN, 
MBA, CNA. Ms. Dohnalek is an experienced Nurse Manager for the Blood 
and Marrow Transplant, Inpatient Oncology, Apheresis and Dialysis 
Services at Georgetown University Medical Center, Washington, DC. In 
her 12 years as a Nurse Manager, Ms. Dohnalek has been responsible for 
the implementation of the Family Medical Leave Act and has first hand 
knowledge of the difficulties of trying to balance the health and 
family needs of her employees against the patient care demands of a 
highly specialized critical care unit.
    The majority of AONE's membership of registered professional nurses 
are leaders in the day-to-day management and delivery of direct patient 
care services. In this position, we are able to see first hand both the 
benefits and difficulties of providing Family Medical Leave to 
employees in a healthcare environment that is faced with critical 
shortages of registered nurses and allied health professionals.
    Thank you for the opportunity to contribute to this valuable 
discussion. We look forward to assisting you as you attempt to improve 
this legislation for those who administer it and the millions who 
benefit from it. Should you have additional questions, please contact 
Jo Ann Webb RN, MHA, Senior Director of Federal Relations and Policy at 
jwebb@aha.org or 202-626-2321.
                               Marilyn A. Bowcutt, RN, MSN,
                                                   AONE, President.
                          Pamela A. Thompson, MS, RN, FAAN,
                                           Chief Executive Officer.

    [Whereupon, at 11:55 a.m., the committee was adjourned.]