NCPA - National Center for Policy Analysis


February 5, 2008

Few laws are so universally acclaimed as the 1993 Family and Medical Leave Act, which is based on the assumption that allowing employees unpaid leave is cost free.  It isn't, says the Wall Street Journal, which is glad to see the Labor Department is finally taking steps to end some abusive practices.

The law allows employees up to 12 weeks of unpaid leave a year to take care of themselves or relatives with a "serious medical condition."  They can also take off for maternity, adoption or newborn care.  That seems simple enough, but the courts continue to strike down regulations that the Clinton Administration issued to implement the act, and the result has been legal and economic confusion, says the Journal:

  • A 2005 study by the Employment Policy Foundation found the law's cost to businesses in 2004 was a not-so-cheap $21 billion.
  • This included $5 billion in lost productivity, $6 billion to continue health benefits for employees on leave, and $10 billion in replacement labor costs -- including wages to employees who had to work additional shifts or overtime to fill in for the missing.

With these costs in mind, the Labor Department issued rules to clear up ambiguities in the law that were being exploited.  Take something called "unscheduled intermittent leave":

  • Under current rules, an employee with a medical condition can simply fail to show up for two days before claiming leave.
  • And since leave can be taken a few minutes at a time, employees can show up late, leave early, or disappear for an hour without notice.
  • This is an invitation for misuse, especially at time-sensitive businesses (say, emergency first response or assembly lines) and many employers have lost control of their workforce.
  • Under the proposed changes, employees would generally have to call in to request leave before taking it.

Source:  Editorial, "Fixing Family Leave," Wall Street Journal, February 5, 2008.

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