By Cindy Skrzycki
Tuesday, December 12, 2006; D01

washingtonpost.com

Like squabbling kids, companies and workers have argued over the Family and Medical Leave Act ever since the law was passed in 1993.

Business groups have filed legal challenges, charging that the rules, which offer employees up to 12 weeks of unpaid leave to attend to personal health problems, are too permissive and allow for abuse. Labor unions say such leaves are underused and essential to keep workers from losing their jobs if they need time off to have babies or care for seriously ill family members.

The Labor Department waded into the dispute Dec. 1, asking for public comments on several issues to help judge the effectiveness of its administration of the program. Among them: what constitutes a "serious health condition"; how to better measure the number of workers who take leaves; and what it costs eligible companies, those with more than 50 employees.

More than 50 million workers have taken the leave since 1993. The Labor Department estimated that 6.1 million took advantage of the program last year, out of an eligible population of 76 million.

When the department issued its final regulation on the law in 1995, it estimated that the leave would cost companies $674 million annually. An employers' research group said in April 2005 that the program cost companies a lot more than that in 2004 -- up to $21 billion in lost productivity, continued health benefits and replacement workers.

"The point is to force some critical thinking on a lot of issues," said Victoria Lipnic, assistant secretary of labor for employment standards, the office that issued the notice.

Business groups may be disappointed in the department's approach since they pushed during the past few years to get the Bush administration to tighten and clarify the rules.

Randel Johnson, vice president of labor, immigration and employee benefits for the U.S. Chamber of Commerce, called the data-gathering exercise a "very preliminary step." He said it was more promising than the series of meetings the department held with interest groups a few years ago without taking action.

The Labor Department admitted in its notice that it has "struggled" with the rule's definition of a serious health condition. That was evident when it issued an interpretive ruling in 1995 saying that minor colds, even if under a doctor's treatment, didn't qualify for leave -- only to reverse the opinion a year and a half later.

Among the other questions to which the department is seeking answers: Do employees at big companies take leave more often than at small companies? Has family leave harmed "perfect attendance" programs, since it doesn't count as being absent? How should eligibility be determined, and when, technically, does leave start -- when it is requested or begins? What is the financial burden on companies, especially if employees take unscheduled, intermittent leave? Do enough employees know about the leave program?

As the announcement said: "Crafting the perfectly equipoised rule to single out only alleged misuse has proven to be a difficult task."

Michael Aitken, director of governmental affairs for the Society for Human Resource Management, a corporate group in Alexandria, said the association gets more calls on the family leave act than any other issue.

Some benefit administrators say they've had to modify their record-keeping to keep pace with the law. "We have had to establish a tracking system for an escalation of absenteeism," said Linda Lulli, associate vice president of human resources for Bryant University in Smithfield, R.I.

Lulli said the average number of claims at Bryant has increased 80 percent since 2002, and she estimates that fewer than half are for legitimate reasons. There has been an increase in leave requests to deal with stress -- often after performance reviews -- and elective medical procedures, such as cosmetic surgery, she said.

Debra Ness, president of the National Partnership for Women & Families, an advocacy group in the District, said some business complaints are not the fault of workers but of the companies.

"We need to be careful not to address discipline problems through regulation," she said.

With Democrats winning control of Congress, worker-friendly groups think they may find the leverage to expand the law. Among the goals are extending coverage to workers at smaller firms and allowing parents to use the leave to attend school conferences.

"This Congress is likely to take seriously building on FMLA rather than cutting it back in any way," Ness said.

A key person in their corner is Sen. Edward M. Kennedy, the Massachusetts Democrat who in January becomes chairman of the Senate Committee on Health, Education, Labor and Pensions.

Kennedy said in a statement that the law has been "a tremendous success" that should be strengthened, not weakened -- as he accused the Labor Department of seeking to do.

"We'll be watching closely to ensure that the administration doesn't take away these needed protections for America's families," Kennedy said.

Sue Willman, an employment lawyer with Spencer Fane Britt & Browne in Kansas City, predicted that it will be tough for Congress to expand the law. "Employers in the country will go berserk," she said.

Cindy Skrzycki is a regulatory columnist for Bloomberg News. She can be reached atcskrzycki@bloomberg.net.