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Ross Runkel
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Ross Runkel |
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The Family Medical Leave
Act: By Nancy J. King
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I.
Introduction The
thesis of this Article is that legislation regulating the employment
relationship may serve as an ethical basis for human resource decisions
by employers. The Article
focuses on the Federal Family and Medical Leave Act of 1993,[1]
a key example of recent congressional legislation that demonstrates this
thesis. The Family and
Medical Leave Act of 1993 (hereinafter FMLA) provides an ethical basis
for human resource decisions involving conflicts between an employer’s
interest in having an employee at work to pursue the organization’s
needs and an employee’s need to be away from work to attend to serious
family needs that include the serious health condition of the employee,
a family member, or the addition of a new child to the employee’s
family. Family
medical leave laws promote ethical human resource decisions because they
give employers a framework for making decisions that balance important
and conflicting needs in an employee’s personal life with the needs of
the employer.[2]
Ongoing application of this framework allows employers to develop
ethical habits that are the core of ethical business decisions. The
habits formed by employers in complying with family medical leave laws
may then serve as the basis for ethical human resource decisions in
areas not currently regulated by family medical leave laws.[3] This
Article will explore the relationship between legal compliance and
ethical human resource decisions. It
will then examine specific aspects of family medical leave compliance
that promote ethical human resource decisions and constitute an ethical
framework for human resource decisions related to the balance of work
and family. The Article will then discuss how this ethical framework,
comprised of ethical habits developed through compliance with family
medical leave laws, may be extended to voluntary human resource
policies. Finally, the
Article will discuss improvements needed in the FMLA or the FMLA
regulations to further promote ethical human resource decisions.[4] II.
Legal Compliance and Ethics: How Employment Laws Help Employers
Make Ethical Human Resource Decisions People
need a system of ethics to help them develop values and make good
decisions. This is also
true for employers making business decisions related to employees.
A system of ethics helps employers make human resource decisions
about how to act in a coherent and consistent manner. This contributes to the well being of our society. A. Ethical Business Behavior Results from Practice Applying
Ethical Rules Ethical
behavior results from experience making decisions according to a system
of ethical rules.[5]
Although it is possible for an individual to develop an ethical
code and make ethical decisions as a matter of considered rational
choice, most ethical codes and decisions are the result of habits, not
individual rational choices.[6]
For example, Francis Fukuyama writes: The
most important habits that make up cultures have little to do with how
one eats one’s food or combs one’s hair but with the ethical codes
by which societies regulate behavior. . . .
Although it is possible to affirm an ethical code as a matter of
carefully considered rational choice . . . the vast
majority of the world’s people do not do so.
Rather, they are educated to follow their society’s moral rules
by simple habituation . . . .
[T]he more highly developed ethical rules by which people live
are nurtured through repetition, tradition, and example.[7] And
Thomas Kohler and Matthew Finkin write of the increasingly important
role of employment experiences in the ethical development of people: We
make ourselves to be what we are through the activities in which we
habitually engage. In other
words, it is the seemingly insignificant things we regularly do that
count most. Our daily routines quietly carve their grooves in us, almost
without our notice, thereby steadily fashioning who we are, and subtly
establishing the horizons by which we take our bearings and establish
our meanings. As noted,
more people are spending more of their time performing paid work than
ever. Consequently,
employment and the manner of its ordering has assumed a greater, if
often overlooked, significance for the character of human beings.[8] B. An Ethical Framework for Human Resource Decisions May be
Found in Some Employment Laws Ethical
rules are often found in laws.[9]
Law, and in particular legislation, can be an important tool to
establish ethical norms and behaviors.[10]
This is a concept that has many contemporary supporters, but
dates from Aristotle’s writings about ethics.[11]
Lon Fuller also draws on Aristotle in his theory about the dual
moral purposes of law: to establish moral duties and to establish moral
aspirations.[12]
This is a conceptual approach with which this author agrees,
finding it encompasses a meaningful analytical tool to understand
ethical issues relating to employment laws.
According to Fuller, a primary moral purpose of law is to
establish moral duties that comprise the basic rules for an ordered
society.[13]
In the context of laws regulating the employment relationship,
employment laws that establish moral duties address the minimum
requirements for the relationship between employer and employee.
An example of this is minimum wage laws. A
second moral purpose of law is to encourage people to behave in ways
that will help individuals reach their full potential.[14]
Generally, laws that have an aspirational moral purpose will not
impose legal sanctions on those regulated that fail to achieve the
highest levels of good behavior envisioned by drafters of the
legislation.[15]
Such sanctions would punish individuals for failure to measure up
to their fullest potential, rather than punishing individuals for
engaging in behavior that is morally wrong.[16]
Likewise, employment laws generally should not and do not impose
legal sanctions for employers who fail to act in ways that constitute
the highest levels of employer excellence, but rather focus on
establishing obligations to comply with the moral duties we have
established for employers in our culture.[17]
However, recognizing the moral aspirational purposes of
employment laws is essential to development of an ethical framework for
human resource decisions. Employment
laws that have a moral aspirational purpose encourage ethical human
resource decision-making by employers outside the context of required
legal compliance. Such laws
thereby constitute an ethical framework or model for human resource
decisions affecting the quality of work life for employees. C. Employment Legislation Reflects the
Need for Ethical Human Resource Practices Currently,
there is a call for businesses of all sizes to be more ethical.[18]
This call has resulted in a relatively new academic field of
“business ethics” and regulating legislation, such as the federal
sentencing guidelines, that impose significant penalties on businesses
that fail to adopt ethical compliance programs.[19]
Other examples of legislation that have resulted from the need
for businesses to be more ethical are “corporate constituency
statutes” that allow managers to make corporate decisions for the
benefit of non-shareholder stakeholders, such as the businesses’
employees.[20] Arguably,
the FMLA is another example of a law that has resulted from the need for
businesses to adopt more ethical human resource practices.
Legislative history establishes that a primary motivation for the
FMLA was the demographic changes that have occurred with regard to the
composition of the workforce in the last forty years.[21]
These demographic changes include the following: the number of
women in the workforce the substantial increase in the number of
single-parent households and the aging of the American population.
It is estimated that twenty to twenty-five percent of the more
than 100 million American workers have some care-giving responsibility
for an older relative.[22]
The unavailability of traditional caregivers, who were
predominantly women not in the workforce, was a key demographic factor
supporting the adoption of the FMLA: [T]he
crucial unpaid caretaking services traditionally performed by
wives—care of young children, ill family members, aging parents¾has
[sic] become increasingly difficult for families to fulfill.
When there is no one to provide such care, individuals can be
permanently scarred as basic needs go unfulfilled.
Families unable to perform their essential function are seriously
undermined and weakened. Finally, when families fail, the community is
left to grapple with the tragic consequences of emotionally and
physically deprived children and adults.[23] Certainly,
the FMLA reflects one of the primary moral purposes of law, which is to
establish moral duties of employers to employees in situations involving
the balance of work and family. In
this sense, the FMLA is characterized as a minimum labor standard for
leave “based on the same principle as the child labor laws, the
minimum wage, Social Security, the safety and health laws, the pension
and welfare benefit laws, and other labor laws that establish minimum
standards for employment.”[24]
However, to the extent the FMLA encourages employer policies that
are more generous than the FMLA requires, the FMLA also reflects the
second moral purpose of law, which is aspirational.
It is in the moral aspiration of the Act that the true ethical
nature of the FMLA is revealed.[25] D. Legal Compliance May In Fact Promote Ethical Human Resource
Decisions Little
academic writing exists about the relationship between legal compliance
and ethical human resource decisions.
This does not mean that the relationship has gone unnoticed.
For example, the Ethics Resource Center, a non-profit,
nonpartisan educational organization with a stated vision of an ethical
world, conducted a series of “visioning” workshops in 1997 which
explored the future of business ethics.[26]
One of the critical trends discussed at each session was the
evolving relationship between legal compliance and ethics.[27]
Workshop discussions on the topic of “Corporate Ethics and
Obligations Outside the Organization” addressed two related questions:
“[T]o what extent does an organization have a moral obligation to
consider the interests of non-stockholders, and what role should an
organization play in its surrounding community?”[28]
“While most participants agreed with the extension of corporate
social responsibilities beyond traditional organizational boundaries,
they differed on specific corporate roles and responsibilities.”[29]
For example, while some workshop participants expressed the view
that corporations should actively support family structures and
community programs, others were concerned about for-profit entities
becoming involved in these decisions.[30]
Workshop participants concluded that “the major challenges for
the business and ethics communities will involve defining corporate
obligations and limits as they relate to community stakeholders, and
balancing these concerns with corporate obligations to stockholders.”[31] Likewise,
the Society for Human Resource Management (SHRM), which claims to be the
world’s largest human resource management association and the leading
voice of the human resource profession, conducted a survey in
conjunction with the Ethics Resource Center.[32]
The “Business Ethics Survey Report” comments that
“twentieth century labor legislation embodies our society’s
enactment of many ethical obligations of employers to their employees.
Compliance with these laws makes ethical decisions easier.”[33]
One writer poignantly describes the dilemma that often makes
human resource management decisions so difficult: “when management
sends mixed messages¾when
the rhetoric says ‘we really believe in caring for employees’ and
everyone knows what they really care about is the bottom line.”[34]
To the extent that ethical obligations correlate with legal
compliance obligations, this tension is reduced. III.
Aspects of Family Medical Leave Compliance that Promote Ethical
Human Resource Decisions Family
medical leave laws address the frequent situation where an employee may
have individual or family commitments that conflict with, and may need
to take precedence, at least temporarily, over the employee’s job.
A situation that conflicts with the employee’s job
responsibilities may include an employee’s need for surgery that will
require a lengthy recovery.[35]
Another example is an employee who has a child with a chronic
illness that precludes the child from attending school or daycare and
requires the employee-parent’s care.[36]
Or, the employee may become a new parent and need time to get to
know his or her new child and to adjust to new parental
responsibilities.[37]
Family medical leave laws, and particularly the Family and
Medical Leave Act of 1993, provide an ethical starting point for making
these types of human resource decisions.[38] A.
The Basic Requirements of the Federal Family Medical Leave Act The
FMLA entitles eligible employees to time off from work for serious
health conditions of themselves, family members, and for birth,
adoption, or foster placement.[39]
The basic leave provided by the FMLA is twelve work-weeks of
leave in a leave calculation year.[40]
Employees will be eligible for FMLA leave if they have been
employed twelve months and have worked at least 1250 hours in the twelve
months prior to the leave.[41]
Employees must also work for an employer with at least fifty
employees in a seventy-five-mile radius.[42] While
an employee is on FMLA leave, a replacement employee may not permanently
fill the employee’s job unless the employer offers the employee
reinstatement to an equivalent job.[43]
An equivalent job is one that is virtually identical to the
employee’s former job and includes equal working conditions,
privileges, prerequisites, and status.[44] The
FMLA protects employees from discipline or discrimination for using
family medical leave.[45]
This protection effectively modifies even no-fault absenteeism
policies such that FMLA absences may not be counted as incidents of
absenteeism.[46]
Bonus programs that reward good attendance must disregard FMLA
absences.[47]
FMLA leave users are also protected from retaliation for using
FMLA leave, such as retaliatory unfavorable job assignments upon return
to work.[48] FMLA
leave need not be paid.[49]
However, during FMLA leave, employees are entitled to continue
their employer-provided health care coverage at the same cost to the
employee as if the employee worked.[50]
Employees on FMLA leave may also use and substitute accrued paid
sick leave under an employer’s sick leave policy and may use and
substitute accrued paid vacation during family medical leave.[51] B. Ethical Habits Employers Are Developing in Their Efforts
to Comply with Family Medical Leave Laws Employees complying with FMLA apply a framework for human resource decisions that leads to ethical human resource decisions. Not every legislative act addressing important public policy issues related to the workplace is ethical in nature or could be used as an ethical basis for human resource decisions. However, in the case of the FMLA, Congress created a law that will result in ethical human resource policies as employers comply with the requirements of the FMLA.[52] The legislative process leading to enactment of the FMLA involved years of support-building, Congressional hearings with scores of witnesses, markups, and compromises, and two vetoes by President Bush.[53] The first family and medical leave bill was introduced in 1985, with similar bills introduced each year from 1987 through 1989. President Bush vetoed family medical leave bills passed by Congress in 1990 and 1992.[54] Finally, the FMLA became law when President Clinton signed it on February 5, 1993.[55] In the protracted legislative process leading to the enactment of the FMLA, lawmakers and those to be regulated by the FMLA, employers and employees, thoroughly examined and debated the divergent positions of the parties.[56] Effective communication between legislators and constituents to be regulated is a measure of the ethical nature of a law.[57] Where there has been effective communication in the legislative process, the resulting legislation is more likely to be ethical in a substantive sense.[58] The FMLA is an example of a law that was enacted in a process involving such communication.[59] The communication process worked effectively and a well-informed Congress balanced the interests of employers and employees. Testimony concerning the changing nature of the American workforce and the needs of employees to meet family emergencies without risking their jobs was balanced with testimony about the important interests of employers to have productive workers and remain competitive.[60] This balancing is expressly recognized in the findings and purposes section of the FMLA.[61] In these findings, the interests of employers are termed “legitimate” and are specifically recognized as worthy of accommodation in the FMLA such that they operate as constraints on the manner in which FMLA’s purposes will be pursued.[62] Congress also specified nondiscrimination on the basis of sex and promotion of equal opportunity for men and women as a second basic limitation on the manner in which the FMLA’s purposes should be pursued.[63] From an ethical perspective, the second constraint is essentially a requirement of consistency and fairness. The habits developed by employers who comply with the FMLA will lead to ethical human resource decisions in matters not currently regulated by the FMLA. In other words, the FMLA provides an ethical framework that employers may apply to many human resource decisions involving the conflicts between employee family responsibilities and the workplace, including situations not currently regulated by the FMLA. If employers apply this ethical framework to family conflicts that are not regulated by the FMLA, the result will be more ethical human resource practices and policies. The ethical framework provided by the FMLA has two key attributes. First, it requires balance between the needs of the employer to have employees engaged in the employer’s work with the need for an employee to occasionally be away from work to fulfill the employee’s family care-taking responsibilities.[64] Second, the ethical framework also requires consistency and fairness in the treatment of groups of employees, such that employees with similar family care needs are treated equitably.[65] It is in this balance, consistency, and fairness that ethical business decisions are promoted by compliance with the FMLA. This Article first examines the ethical habits employers learn by complying with the FMLA before turning to the tremendous potential for application of the ethical framework provided by the FMLA to work family conflicts not regulated by the FMLA. 1. The Habit of Providing Job Security to Employees on FMLA
Leave When
employees take FMLA leave, they may leave their jobs for up to twelve
weeks with the assurance that they will be reinstated to the same or an
equivalent job when they return at the end of the leave.[66]
This assurance of job protection is a valuable attribute to an
employee who otherwise might well be an at-will employee with no such
job security and one who could be replaced during the leave at the whim
of the employer.[67]
Even employees with disabilities who may be granted leave as a
reasonable accommodation do not have the level of job protection the
FMLA affords.[68]
Under the Americans with Disabilities Act (hereinafter ADA), the
employer may determine that a continued provision of leave to a disabled
employee as a reasonable accommodation constitutes an undue hardship and
thereby be permitted to lawfully fill the employee’s position with
another worker.[69]
For this reason, employees protected by the ADA also benefit from
having their leaves designated as FMLA leaves. When the employee is
entitled to FMLA leave, the employer has no defense similar to the
ADA’s undue hardship defense that would relieve the employer of its
obligation under the FMLA to provide job protection and reinstatement.[70] The
balance of employer/employee needs is reflected in the fact that the
FMLA is limited to essentially short-term absences not exceeding the
twelve work-week FMLA-protected period.[71]
Also, the balance is apparent in the job security provisions
available to employees under the FMLA; for example, an employee on FMLA
leave is not protected from job elimination for bona fide
business reasons.[72]
This limitation on job security is not unfair to the employee on
FMLA leave. Rather, it
means employees on FMLA leave do not have any greater rights than other
employees where jobs are eliminated for valid business reasons.[73] The
FMLA also establishes rules of fair behavior for employers in the form
of non-retaliation provisions.[74]
These non-retaliation rules prevent unfair behavior by employers
that would frustrate the job security provisions of the FMLA.[75]
For example, the non-discrimination provisions of the FMLA
protect employees from manipulative actions by employers that are
designed to discourage employees from either taking FMLA leave or to
thwart employees’ reinstatement rights.
For example, it would violate the FMLA for an employer to
reassign essential job duties to other employees, thereby eliminating
the employee’s job, to preclude an employee from taking FMLA leave.[76]
And it would also violate the FMLA for an employer to reinstate
an employee to a job on a different shift to discourage the employee
from returning from FMLA leave.[77] The
job security provisions of the FMLA are superior to most other legal or
contractual job security protections for employees, are generally
applicable without exception, and therefore lead to consistent ethical
practices by employers to provide a high level of job security to
employees on FMLA leave. Nonetheless,
the job security provisions reflect a balance of employer/employee needs
because of their short-term nature and because no job security is
provided in bona fide job elimination situations where other
employees not utilizing FMLA leave would have no job security.[78] 2. The Habit of Helping Employees Balance Family and Job
Responsibilities in Situations Involving Employee Pregnancy and
Childbirth The
FMLA sets minimum leave time for both male and female employees to use
for the birth, adoption, and foster placement of a child and allows the
new parents to use this time during the twelve months after the child is
born or placed with the family.[79]
This type of leave is commonly referred to as “parental
leave.” Prior to the FMLA, employers may have provided maternity
disability leave to address the period of time a female employee was
disabled by pregnancy or childbirth.
However, employers who provided maternity disability leave may
not have chosen to provide parental leave for both male and female
employees to bond with new children following the period of time female
employees were no longer disabled by pregnancy or childbirth. The
FMLA’s provisions for parental leave demonstrate the ethical
attributes of consistency and fairness, which the FMLA requires an
employer to apply. [80]
Under the FMLA, employers form habits of treating both male and
female employees as new parents, rather than just focusing on female
employees and the pregnancy disability issues of female employees.
Any new parent, male or female, is entitled to use FMLA leave to
bond with their new child.[81] The
parental leave provisions also reflect a balance of employer and
employee needs. Specifically,
the FMLA recognizes the employer’s need to limit the burden an absence
of a married couple could present when both parents work for the same
employer. Under the FMLA, parents who work for the same employer must
share the twelve weeks of FMLA leave for birth, adoption, or foster
placement.[82]
According to the U.S. Department of Labor’s comments that
accompanied the final FMLA regulations, this provision requiring spouses
to share the twelve weeks of leave for birth, adoption, or foster
placement of a child was intended to eliminate any incentive for
employers to refuse to hire married couples due to the fear that both
parents would be unavailable for extended periods of time when a new
child joined the family.[83]
Although the spouses are limited to a combined twelve weeks of
FMLA leave for birth, adoption or foster placement, a female employee
who is disabled by pregnancy is permitted to use all or a portion of her
twelve-week FMLA entitlement for her own serious health condition.[84]
Her use of part or all of her FMLA entitlement for pregnancy
disability does not reduce the amount of leave the other spouse may use
for birth, adoption, or foster placement.[85]
For example, if a married couple were employed by the same
employer and the female employee was disabled by pregnancy for eight
weeks, the female employee could use four more weeks of leave for the
birth of their child and the male could use eight weeks of leave for the
birth of their child.[86]
Again, the FMLA reflects a careful balance, protecting both
employer and employee needs. 3. The Habit of Treating Employees who are Adoptive or
Foster Parents as Favorably as Employees who are Parents of Newborn
Children The
FMLA encourages employers to view employees who adopt children or act as
foster parents of children as parents with equal rights to leave as
employees who are biological parents.
This is yet another example of the FMLA promoting consistent and
fair human resource decisions. An
employee who adopts a child or becomes a foster parent may use all or
part of his or her twelve-week family leave entitlement to bond with the
newly adopted or foster-placed child.[87]
Like biological parents, the leave for adoption or foster
placement must occur within twelve months after the placement of the
child with the employee.[88] There
is an important exception that allows use of FMLA leave in adoption or
foster placement situations prior to the placement of the child with the
employee. This exception
allows the employee who is attempting to become an adoptive parent or
foster parent to use FMLA leave to protect an absence from work if it is
required for the placement for adoption or foster care to proceed.[89]
For example, the adoptive or foster parent-to-be may be required
to attend counseling sessions, appear in court, consult with his or her
attorney or the doctors representing the child’s biological parent, or
submit to a physical examination.[90]
All these preparatory efforts by an employee are protected leave
under the FMLA.[91]
Leave for preparatory efforts to adopt or become a foster
placement is consistent and fair when compared to the treatment afforded
biological parents and is analogous to use of FMLA for prenatal
appointments. 4. The Habit of Respecting Employees’ Responsibilities to
Provide Psychological Comfort or Care to Seriously Ill Family Members In
its provisions for compassionate leave, the FMLA recognizes the
emotional needs of family members to have employees present when they
are experiencing serious health condition, for example, when an
employee’s parent has a potentially terminal illness or his or her
child is undergoing surgery.[92]
Again, the FMLA promotes consistency and fairness in human
resource decisions because it recognizes that caretakers provide not
only physical care but also psychological comfort to family members.[93]
The inclusion of compassionate leave in the FMLA is of
significant importance given the increasing unavailability of the
traditional caregivers in our society.[94]
It also provides a limited solution to some of the work versus
family conflicts that confront most employees.[95] On
the other hand, the FMLA balances the employee’s need for
compassionate leave with an employer’s need for verification of a
legitimate reason for absence to prevent abuse.
This balance is demonstrated by the medical certification
provisions which allow an employer to require an employee to present
medical certification to support his or her use of the FMLA for the
purpose of providing psychological comfort or care to seriously ill
family members.[96] 5. The Habit of
Making the Care of Children with Serious Health Conditions a Priority,
Without Distinction for Marital Status of the Children’s Parents The
ethical attribute of consistency and fairness on which the FMLA is based
is nowhere more apparent than in its provision of leave for an employee
to care for a child with a serious health condition.[97]
The FMLA incorporates a very broad definition of covered
children. Employees may use
FMLA leave to care for a child if the child is their “son or
daughter.”[98]
The definition of son or daughter includes biological, adopted,
foster, and stepchildren.[99]
It also includes a child who is the legal ward of the employee
and situations where the employee is in a relationship of in
loco parentis to the child.[100]
In loco parentis rules
allow an employee who is not the legal or biological parent to use FMLA
leave to care for the child if the employee can show he or she has
day-to-day responsibilities to care for the child and financially
supports the child.[101] Nor
does the FMLA deny the use of FMLA leave to employees who do not have
custody of their children. Under
the FMLA, there is no requirement that the child live with the employee;
an employee with a biological, adopted, or stepchild who is not living
with the employee would qualify if the child has a serious health
condition and the employee is needed to provide care.
Control of potential employee abuse in such situations is found
in the employer’s ability to require medical certification to support
the use of FMLA.[102]
In recognition of the ethical balance between employer and
employee needs, the employer may require that the employee obtain a
medical certification from the child’s health care provider stating,
among other things, that the child has a serious health condition and
the employee is needed to provide care.[103] Finally,
the use of FMLA leave to care for children with serious health
conditions is not limited to the employee’s children under eighteen
years of age. If the child, even though older than eighteen years of age,
is incapable of self-care due to a serious health condition, the parent
may use FMLA leave to care for the child.[104]
For example, an employee may take leave to care for an adult
child who contracts cancer or kidney disease, such that the adult child
needs the employee-parent’s care.[105]
There is no requirement that the child has been mentally or
physically disabled as a minor or prior to contracting a serious health
condition.[106] Clearly,
the FMLA puts a high priority on the provision of leave to caretakers of
children with serious health conditions and ensures that all children
are treated fairly and consistently, without regard to marital status of
the employee/parent. 6. The Habit of Providing Flexible Work Schedules for
Employees with Chronic Serious Health Conditions or Caring for Family
Members with Serious Health Conditions The
FMLA concepts of “reduced schedule” and “intermittent” leave
provide great flexibility to an employee to balance work and family
issues.[107]
“Reduced schedule” FMLA leave may result in a part-time
schedule for an otherwise full-time employee.[108]
The availability of intermittent FMLA leave may allow an employee
to use FMLA leave when the employee’s serious health condition
incapacitates the employee on an episodic basis.[109]
For example, an employee with asthma may use FMLA leave a day or
two at a time when the employee’s asthma keeps the employee from
working, rather than as a block of time.[110] Either
concept may result in spreading the employee’s twelve-week FMLA
entitlement over a period that is longer than twelve workweeks.
This occurs because only the FMLA time actually used is counted
against the employee’s twelve-week entitlement.[111]
For example, an employee with a serious health condition that
limits the employee to a four-hour workday, but who otherwise would be
scheduled to work eight hours a day, will be able to use four hours of
FMLA leave a day for up to twenty-four work-weeks before exhausting his
or her FMLA leave entitlement for the year.[112]
Likewise, an employee who uses one day of FMLA leave per week and
works the remaining four days of a five-day work-week, is using only
one-fifth of a work-week of leave in each workweek and may do so for up
to sixty workweeks before exhausting his or her leave entitlement.[113]
In fact, an employee using only one day of FMLA per workweek will
be entitled to a new twelve-week FMLA entitlement before exhausting the
previous twelve-week entitlement because the employee will enter a new
leave calculation year prior to using all the FMLA leave available. Employees
may also use “reduced schedule” and “intermittent” FMLA leave to
care for family members who have serious health conditions.[114]
For example, the employee with an elderly parent who has an
Alzheimer’s condition may need to relieve the parent’s caregiver
occasionally due to illness of the caregiver or other situations where
the caregiver is unavailable. If
the employee uses a few days of FMLA leave on an intermittent basis or
reduces his or her schedule a few hours a day for a few weeks, the FMLA
will enable to employee to provide the care the parent needs while
retaining his or her job.[115] Some
employers may view the concepts of reduced schedule and intermittent
leave as interfering with employers’ prerogatives to set employee work
schedules and to require regular attendance by employees.[116]
In the case of unanticipated leave, the FMLA’s reduced employee
notice provisions admittedly allow an employee to provide little notice
to the employer that the employee may need reduced schedule or
intermittent leave.[117]
This is true whether the unanticipated absence is for the
employee’s or a family member’s serious health condition.[118]
While the employee is expected to give up to thirty days of
advance notice of the need for FMLA leave in situations where the need
for the leave is anticipated, the employee need only give as much notice
as is practical when thirty days notice is not practicable.[119]
In situations where the need for the leave is unanticipated, the
employee may well be permitted to notify the employer of his or her need
to be absent on the very day that the employee is unable to work.[120]
For example, if an employee has an asthma attack or the employee
with a parent requiring a caregiver for a serious health condition
learns the caregiver has resigned unexpectedly, the employee may notify
the employer on the day the employee learns of the emergency that the
employee is unable to work. In
some cases, the employee’s notice will be timely if it is made within
one to two business days after the need for FMLA leave occurs.
[121] Nor
do the medical certification requirements of the FMLA provide much
control of an employee’s use of intermittent leave.[122]
While the employer may require a medical certification from the
employee’s health care provider that certifies that the employee has a
serious health condition requiring the employee to be absent on an
intermittent or reduced schedule basis, the medical certification may
cover an extended period of time.[123]
When an employee has a chronic serious health condition such as
asthma, the employer may not require the employee to provide a separate
medical certification for each use of intermittent leave.[124]
These medical certification requirements also apply to the use of
reduced schedule or intermittent leave by an employee to care for a
family member with a serious health condition.[125] Because
an employer may not require a separate medical certification for each
absence due to an employee’s or family member’s long-term or chronic
serious health condition, provided the employee has produced a medical
certification that covers the serious health condition for a period of
time, the employer may find it has little ability to verify that a
particular absence was protected by the FMLA.[126]
The employer will generally have to rely on the employee to
truthfully advise the employer that the absence was for FMLA purposes.[127]
Of course, the ability of an employer to require a second or
third medical certification from independent health care providers is of
some benefit to an employer trying to control absenteeism or misuse of
FMLA leave.[128] The
FMLA concepts of reduced schedule and intermittent leave have greatly
increased the flexibility of employer policies that relate to the
balance of work and family. As
the research demonstrates, this flexibility is just the type of change
needed and desired by many workers.[129]
However, employers may argue that little balance between the
needs of employers and employees is reflected in the intermittent and
reduced schedule provisions of the FMLA because employers have
legitimate interests to have employees at work on a regular and
consistent basis and to have advance notice of absences.
It could be argued that the ethical framework fails on this point
because these leave provisions fail to accomplish the balance so evident
in other parts of the FMLA. It is true that employers may find it much more difficult to
accommodate an employee’s unpredictable absences, especially when
those absences do not necessarily extend for a full workweek or even a
full workday. Some
provision for a limit similar to the undue hardship[130]
concept found in the Americans with Disabilities Act would alleviate
this situation and is recommended as a solution to correct this
imbalance between employer and employee needs in the FMLA.
Because the FMLA expressly provides in the statutory text that
FMLA leave may be used on an intermittent or reduced schedule basis, the
legislative intent is not ambiguous.[131]
There appears to be little room to institute an undue hardship
limitation through statutory construction or administrative regulation.[132] 7. The Habit of Communicating with Employees About
Employees’ Obligations During Leaves and the Consequences of Failing
to Meet Employers
have many affirmative obligations under the FMLA to communicate with
their employees about the FMLA.[133]
For example, the FMLA is one of the few laws that require an
employer to distribute written information about employee rights to
employees.[134]
If the employer has an employee handbook, the employer must also
include information about the FMLA in the handbook.[135]
The general notice requirements apply to all employees, even
employees with no current need for FMLA leave.[136] There
are also individual notice requirements that employers owe to employees.[137]
When an employee notifies an employer of the need to take leave
for a reason that would be covered by FMLA, even if the employee does
not mention the FMLA, the employer must individually communicate in
writing with the employee to advise the employee that the leave is being
designated as FMLA leave, that it will be counted against the
employee’s FMLA entitlement, and to advise the employee of specific
rights and obligations which relate to FMLA.[138] An
employer’s failure to communicate as required by the FMLA is generally
construed to favor the employee.[139]
For example, an employer must advise an employee that a medical
certification will be required for approval of the leave or that a
fitness for duty certification will be required before the employee may
return from the leave in the written notice to the employee at the time
FMLA leave begins.[140]
An employer’s failure to timely notify employees of medical
certification or fitness-for-duty certification requirements makes the
requirements unenforceable.[141]
Likewise, failure to notify an employee that paid leave is being
counted as a use of FMLA leave means the employee may utilize paid leave
without having his or her twelve-week FMLA leave entitlement reduced, at
least until the employee is otherwise notified.[142]
Further, retroactive designations of FMLA leave after an employee
returns to work are generally not permitted.[143] All
these employer notice requirements require an employer to communicate
essential terms of an FMLA leave with the employee and protect the
employee from adverse action if the communication does not occur.
An administrative process that ensures communication by employers
with employees best meets these provisions.
Such an administrative process promotes consistency and fairness
in these communications, an essential component of the ethical framework
created by the FMLA. However,
in some situations, the notice provisions of the FMLA fail to capture a
perfect balance between employer and employee needs.
This is because employers have a disproportionate notice burden
when compared to the lenient employee notice provisions.
Technical noncompliance by an employer with its notice
obligations may result in additional leave rights being afforded to an
employee. Consequently, in
Section V of this Article, improvements to the FMLA or the FMLA
regulations are recommended to restore balance to the FMLA and further
promote ethical human resource decisions. 8. The Habit of Protecting Employee Privacy Related to
Medical Issues The
FMLA requires protection of employee privacy about medical issues.
Employers may only obtain limited information from an employee’s
doctor to support a use of FMLA leave.[144]
These rules prohibit an employer from delving into the medical
condition of an employee beyond the limited job-related information that
the medical certification requirements permit.[145]
For example, an employee’s health care provider need not
provide any information to the employer about the prognosis for the
employee’s recovery.[146]
Further, although the medical certification provisions require a
statement of the medical facts, which support the health care
provider’s conclusion that the employee or family member has a serious
health condition, the employer is not entitled to a diagnosis.[147] Employers
are entitled to even less information from an employee’s health care
provider related to the fitness of an employee to return to work.[148]
When a fitness for duty certification is permitted by the FMLA, a
simple statement from an employee’s healthcare provider that the
employee is fit for duty is sufficient to return the employee to work.[149]
However, in some cases a fitness for duty certification will not
be allowed by the FMLA.[150]
For example, a fitness for duty certification may only be
required if the employer has a uniformly applied policy or practice that
requires all similarly situated employees to present a fitness for duty
medical certification prior to returning to work.[151]
Further, a fitness for duty medical certification may only be
required related to the condition for which the employee used FMLA leave
and then only if it is job-related.[152]
Finally, a fitness for duty medical certification provides the
employee’s health care provider’s opinion that the employee is fit
or not fit for duty.[153]
No independent medical examinations may be required by an
employer to assess the employee’s fitness for duty.[154] In
addition to the medical privacy provisions of the FMLA, the protections
for employees found in the medical confidentiality rules of the ADA are
also available to employees on FMLA leave.[155]
Therefore, employers must keep medical information about
employees on FMLA leave confidential with few exceptions as provided by
the ADA.[156]
These exceptions are very limited, although employers may advise
supervisors of necessary work restrictions and accommodations made for
employees. Employer documents, including forms related to the
employer’s administration of FMLA leave, must be kept in confidential
medical files to the extent they contain confidential medical
information, consistent with the ADA.[157] The
combined confidentiality requirements provided by the FMLA and the ADA
increase the likelihood that employees will be able to maintain a
reasonable level of privacy about their medical conditions and those of
family members while still being able to utilize FMLA leave. These
combined confidentiality requirements also protect employers’ needs
for sufficient medical information to support FMLA leaves and prevent
employee abuse. The
resulting balance reinforces ethical practices in this regard by
employers. 9. The Habit of Treating Absences for Family Obligations and
Employee Medical Conditions as Excused Absences One
of the most important habits employers develop by complying with the
FMLA is the practice of treating FMLA leaves as excused absences for
disciplinary reasons. When
an employee uses the FMLA, the absence is protected and may not be used
for any punitive purpose by the employer against the employee.[158]
This protection ensures that an employee who utilizes FMLA leave
will not be penalized for the absence under an attendance policy or have
the absence assessed negatively when applying for a promotion.[159]
Even no-fault attendance policies must excuse FMLA absences.[160] If
an employee advises an employer of the reasons for an absence in
sufficient detail to allow the employer to recognize an absence as FMLA-protected,
the absence is protected.[161]
This is true even though the employee and employer failed to
recognize an absence was protected by the FMLA. Because
no exception under the FMLA allows an employer to discipline or
terminate an employee for excessive absenteeism that results from use of
FMLA-protected absences, employers must revise absenteeism policies to
make exceptions for FMLA-protected absences.
In essence, employers must treat FMLA-protected absences as
excused. The required
consistency of treatment of FMLA absences by FMLA-covered employers is
one of the attributes of the FMLA most likely to increase the ability of
employees to balance work and family.
However, inability to enforce no-fault absenteeism policies and
the accompanying burden of tolerating absent employees is one feature of
FMLA compliance, that employers may well contend does not reflect an
appropriate balance between employer and employee needs.
Because the ability to take FMLA leave without jeopardizing
one’s job, including being subjected to discipline, is so critical to
the ethical framework established by FMLA, this contention by employers
should be rejected. The
FMLA appropriately recognizes an employee’s need for leave to care for
themselves or family members can only be met if the employee is provided
job security and protected from discipline for FMLA-protected absences.
The employer’s need to discipline employees for absenteeism is
only valid when the employee is not on FMLA-protected leave. Because the
minimum leave entitlements of FMLA are spread among all covered
employers, all covered employers operate under this minimum employment
standard.[162]
It is fair to make this protection against discipline part of the
FMLA compliance package. IV.
How Ethical Habits Developed Through Compliance With Family
Medical Leave Laws May be Extended to Voluntary Ethical Human Resource
Policies Compliance with the FMLA leads to ethical human resource decisions because those decisions are made within an ethical framework that has two essential attributes: balance between employer and employee needs and a requirement of consistency and fairness in the treatment of groups of employees with similar family care needs, leading to equitable treatment of employees by employers. Compliance with the FMLA requires employers to practice making ethical human resource decisions according to the FMLA’s rules. As a result, employers develop a number of ethical habits, as outlined above, when dealing with employees who need to provide care to family members in ways that conflict with their job responsibilities. There is no reason for employers to limit their application of these ethical habits to situations currently covered by the FMLA. Employees have analogous work or family conflicts, which currently fall outside the employer’s compliance obligations under the FMLA. Yet, the ethical habits employers have developed in their compliance with the FMLA seem very well suited to these work or family conflicts. If employers apply the ethical framework created by the FMLA situations not now covered by the FMLA, ethical human resource decisions will be more likely to result. A. The Policy of Allowing Employees to Balance Important
Work and Child Rearing Responsibilities The
FMLA provides a legal right to family medical leave when a child has a
serious health condition, but it does not help parents with leave
situations caused by their children’s illnesses which are not serious
health conditions.[163]
Often a parent may be unable to work because his or her child has
a temporary illness that makes the child unable to attend school or
daycare, yet the parent is not entitled to leave under the FMLA.
For example, a child with an ear infection or a cold may not have
a serious health condition because the child’s incapacity does not
last longer than three consecutive calendar days nor require continuing
treatment by a health care provider.[164]
Nor does the FMLA provide leave to parents to take an active part
in a child’s education, such as time to volunteer in the child’s
classroom or attend parent-teacher conferences.[165] Employers
who have become accustomed to allowing employees leave to care for
children with serious health conditions may find it is not that
difficult to also allow employees to use job-protected leave for
non-serious health conditions of their children or to participate in
their children’s schools. Some
employers have even expanded paid sick leave policies to allow employees
to use this type of leave to care for family members. Application
of the ethical framework of FMLA to the issues of sick children and
participation in the school activities of children would allow a
balancing of employer and employee needs.
Here, the employer needs to have sufficient employees at work on
a regular basis in order to accomplish its business objectives and is
concerned about retention of its workforce and the cost of temporarily
replacing the employee during the leave.
Employees, on the other hand, may need to provide care to
children who are too ill to attend school or daycare and are unable to
arrange adequate alternative care. Additionally, participation in a child’s school activities
is a family care activity that has value to the family as well as to the
health of our educational institutions.
The current balance struck in the FMLA is to provide time off for
the employee but not require the employer to pay the employee during the
leave. An employer with a
paid sick leave policy that allows employees to use paid sick leave to
care for family members must allow employees to use paid sick leave
during a family leave absence, consistent with the terms of its sick
leave policy. Nothing in the FMLA mandates that an employer have a paid
sick leave policy to allow employees to use sick leave to care for
family members, or precludes an employer from changing its policy.[166]
In like fashion, the employer and employee needs in the situation
of sick children and school participation leave could be balanced just
as they are under the FMLA. The
unpaid nature of FMLA leave has been identified as a significant barrier
to the use of FMLA leave by employees.
President Clinton recently issued an executive memorandum
outlining steps he plans to take in an effort to make family and medical
leave more affordable for employees in both public and private sectors.[167]
Consistent with this memorandum, President Clinton directed the
U.S. Department of Labor to issue a rule to allow states to use their
unemployment systems to offer paid leave to new mothers and fathers
following birth or adoption.[168]
By advocating use of unemployment insurance benefits to help
employees afford parental leave, the President’s proposal respects the
legitimate cost concerns of employers while addressing the needs of
employees to have paid parental leave. Several
state family leave laws provide models for expanding an employer’s
policies in this area. For
example, at least one state family leave law provides leave to parents
for their children’s non-serious health conditions.
The Oregon Family Leave Act allows a parent to use state family
leave when a child under age eighteen (or a child eighteen or over who
is mentally or physically incapable of self-care) has an illness or
injury that requires home care.[169]
This type of leave is available to parents of children who are
too sick to attend school or childcare, even if the parent is able to
give little or no advance notice to the employer of the need for leave. Also,
some states provide job-protected leave for a parent to participate in a
child’s school or childcare. Minnesota
is one of these states. Under
Minnesota law, an employee/parent may use up to sixteen hours of leave
in a twelve-month period to attend school conferences or school-related
activities related to his or her child, provided the conferences and
activities cannot be scheduled during non-work hours.[170] A
bill to amend the FMLA has been introduced that would make school
participation leave a requirement for all FMLA-covered employees.[171]
This bill and a similar bill introduced in the Senate would also
amend the FMLA to reduce the number of employees required for an
employer to be covered by FMLA from fifty employees in a
seventy-five-mile radius to twenty-five, making many more employees
eligible to use FMLA leave.[172] The
expansion of the FMLA to cover smaller employers will expand the
application of the FMLA’s ethical framework to yet more human resource
decisions. It is also likely to expand the development of ethical habits
by employers dealing with non-FMLA-covered issues, such as absences to
care for sick children and to participate in a child’s school or
childcare. B. The Policy of Respecting Employee Family Member
Responsibilities Regardless of Marital Status The
FMLA does not protect employees who take time off from work to care for
a significant other who is not a spouse, whether that significant other
is that of the same or the opposite sex.
This is because the FMLA’s definition of “spouse” is
limited to a husband or wife as defined under state law for the purpose
of marriage in the state where the employee resides.[173] Employers
who have become accustomed under the FMLA to allowing an employee time
off from work to care for his or her spouse will see the inequity of
denying leave to another employee to care for his or her ill significant
other simply because the employee is not married under state law.
Application of the ethical framework of the FMLA would mandate
treating employees in these groups similarly in order to achieve
consistency and fairness. The
definition of spouse under the FMLA is one concept that may not be
possible to expand under current federal law.
Under the Defense of Marriage Act (hereinafter DOMA), for all
federal laws and statutes, “marriage” is defined to mean only a
union between a man and a woman, and the term “spouse” is defined
only as a person of the opposite sex.[174]
However, despite DOMA, there is no restriction on an employer’s
ability to address this inequity by adopting ethical human resource
policies that provide family medical leave for married and unmarried
couples including those of the same sex. Some
state family leave laws provide models for employer policies that do not
discriminate based on the marital status of the employee.
For example, unlike the FMLA, the District of Columbia’s family
medical leave statute provides for leave to care for a domestic partner.[175]
The District of Columbia law defines a family member as one who
“shares, or has shared in the last year, a mutual residence with the
worker and with whom the employee maintains a committed relationship.”[176]
Therefore, this law covers homosexual relationships as well as
other non-marital intimate relationships. The
law in some other states is in a flux.
For example, the Oregon Court of Appeals recently held that the
state statute prohibiting discrimination on the basis of gender
precludes discrimination on the basis of a relationship with a same-sex
partner.[177]
An unanswered question is whether Oregon’s gender
discrimination law will be interpreted to require Oregon employers to
provide family medical leave and other employment benefits to employees
with same-sex partners or to unmarried heterosexual partners. Application
of the ethical framework provided by FMLA, particularly the components
of fairness and consistency towards similarly situated groups of
employees, would result in family leave policies that include leave to
care for unmarried significant others. C. The Policy of Respecting Employee Obligations to Family
Members Not Covered by FMLA The FMLA does not protect an employee who needs time away from work to care |
