The Ethical Issues Of Family Medical

Leave Act Essay, Research Paper

The Ethical Issues of Family Medical Leave Act

The Family Medical Leave Act (FMLA) was eight long years in the making. After many bitter debates between the Republicans and Democrats, Congress passed the Act on February 4, 1993. President Clinton signed the measure into law the following day. The Act became effective on August 5, 1993. The Act required employers with fifty or more employees within a seventy-five mile radius to offer eligible employees up to twelve weeks of unpaid leave during a twelve month period for a variety of medical reasons. Some of the general medical reasons are, for the birth or adoption, to care for a seriously ill parent, spouse or child or to undergo medical treatment for their own illness. The Act spelled out provisions on employer coverage; employee eligibility for the law s benefits; entitlement to leave, maintenance of health benefits during leave, and job restoration after leave; notice and certification of the need for FMLA leave; and protection for employees who request or take FMLA leave. (1) The law also requires employers to keep certain records. It was estimated that the Act would affect five percent of America s employers and forty percent of all employees. This paper will show the ethical standpoint on how employers handle FMLA. In addition, this paper will show the progress FMLA has made in five years, becoming more ethically correct.

Many employers have been baffled as they attempt to sort through the overlapping obligations created when a sick or injured worker s medical condition triggers the different rights and responsibilities under new federal laws. If businesses want to avoid costly lawsuits from disgruntled employees it is essential to understand their responsibilities under the laws. Employers must make a two-part analysis to determine which laws apply to the situation. Just because an employee qualifies under one law does not mean the employee will automatically qualify under another. To reduce problems, employers should give injured workers notice of their rights under the FMLA if the injury appears to qualify under both statutes. The protected leave provided by the FMLA may run concurrently while an injured worker receives worker s compensation benefits, but only if the employer gives proper notification to an employee before the individual returns to work. Otherwise, the employee retains all FMLA rights for any future problems or a reoccurrence of the original injury. This can be a problem when the employee takes FMLA leave intermittently, to receive rehabilitative services or other treatments. It is essential that front line supervisors be made aware of the basic provisions of these laws to head off misunderstandings. Supervisor training is especially important since and employee is not required to make a specific request for FMLA leave in order to be protected. A uniform policy and supervisory training should help prepare an employer to handle these complex issues. The employer s ethical responsibility is to post notices of employee rights and responsibilities under the FMLA. Also include an FMLA policy in existing employee handbooks or otherwise distribute such a policy, and must notify employees of their rights and responsibilities under the Act when a request for FMLA leave has been made. Those in favor of a national standard for family leave have argued for years that employers who have adopted Family and Medical leave policies have already experienced cost saving through reduced employee turn over and decreased hiring and training expenses. Such policies are viewed as a way to protect a company s investment of time and money in its most valuable commodity: its workers. Supporters have also argued the Act will be cost effective from a public policy standpoint and the benefits outweigh the problems because society as a whole often pays the price for failed, fragmented family units. On the other hand, many smaller employers see the new law as just the latest in a series of expensive, bureaucratic nightmares that will disrupt the work place and result in lost productivity.

Which of these arguments proves valid on a national basis remains to be seen. The only thing that can be said with certainty at this time is that millions of American employers and employees are hopeful the Act can be implemented in a manner that maximizes benefits and minimizes burdens on both employers and employees. August 5, 1998 marked the fifth anniversary of the federal Family Medical Leave Act. The FMLA has helped millions of working women and mend spend time with new children and cope with a family crisis without fear of losing their jobs or their health insurance. On the fifth anniversary, Rep. Ellen Tauscher hailed the FMLA as a breakthrough piece of legislation for working families throughout California and all across America. This landmark legislation was the first bill that President Clinton signed into law after assuming the Presidency in 1993. Rep Tauscher s issued a statement: As we know two of the greatest American values are those of work and family and the Family and Medical Leave Act has allowed millions of working families to maintain their family commitments while at the same time remaining loyal employees. The FMLA marks a great milestone for working families and is truly one of the greatest legislative initiatives of the entire decade. No longer do people have to worry about losing their job when they have a sick child or elderly parent. Since the inception of the FMLA, fifteen million families have taken advantage of the initiative. In five short years, the FMLA has become a necessity for millions of working families who are trying to balance the responsibilities of work and home. Clearly, the FMLA have been a tremendous success. (2) As a result of President Clinton s Medical Leave Act more than twelve million eligible workers have taken leave since its enactment and more than eighty-five percent of companies covered by the Act found that is neither adds to their costs or takes away from their profits. (3) The Women s Legal Defense Fund estimates that twelve to sixteen millions workers have taken some family or medical leave allowed by the FMLA. (4) Given leave rights available under companies existing sick leave policies, however, it is difficult to estimate with precision how many workers exercised health-related leave rights purely by virtue of rights conferred by the FMLA. President Clinton and Vice President Gore want to expand the law to cover family obligations to better help workers care for their children and elderly relative without sacrificing their work obligations. If the FMLA is not expanded to cover more American workers in businesses with less than fifty employees, millions of workers will continue to remain unprotected by the FMLA. Despite the FMLA s conflicting goals, employees have not filed a torrent of suits seeking to invoke its benefits. Federal court litigation involving the FMLA has increased each passing year. In 1997, there were over 100 documented decisions stemming from complaints containing FMLA claims. (5) Over the course of the last few years, courts have been thrust into the role of diagnosing medical conditions. Separately, several district courts have ruled on an issue left open in the FMLA: whether individual liability on the part of supervisors exists under the law. District courts, to date have been inconsistent in their rulings. No appellate court has yet addressed the issue. The Department of Labor (DOL) issued its final regulation on April 16, 1995, almost two years after the FMLA s effective date. The major delay was due to the DOL interference. The regulations wanted to clarify what constitutes an FMLA-qualifying serious health condition and continuing treatment. The FMLA now defines serious health condition clearly as an illness, injury, impairment or physical or mental condition that involves (A) inpatient care in a hospital, hospice or residential medical are facility; or (B) continuing treatment by a health care provider. (6) The labor Department received more than 6,300 complaints of FMLA violations, announced a toll-free number that callers can use to get a brief explanation of the law and learn how to get more detailed information through the mail. This toll-free number was implemented to help workers who need information when caught between work and family s well being. The DOL said that, as of September 30, 1998 it had resolved ninety percent of the 6346 complaints against employers for alleged failure to comply with the law. (7) The DOL found that fifty-eight percent of the complaints involved apparent violations, more than half in which included employer refusal to reinstate an employee to the same of equivalent positions held before taking leave. (7) Only eighteen percent of the violations involved employers refusing to grant leave when required. (7) The remaining forty-two percent of the complaints were situations that were not covered by or did not violate the law. (7) Democrats also marked the fifth anniversary of the federal Family and Medical Leave Act. DNC National Chair Steve Grossman said, Despite what Republicans think, Americans work very hard and deserve to be able to take time off when a family member need medical attention, Democrats are very proud of what the Family Medical Leave Act has provided for American families. (8)

The Family Medical Leave Act has clearly been a lifesaver for many employees in America since its inception in 1993. To ensure the ethical practices of employers, they are regulated by the Department of Labor to ensure all eligible employees are covered under the Family Medical Leave Act and their unalienable rights are not violated. The Act ensures that an employee will not be unduly terminated due to a medical condition of their own or close family and their job will be secure for the term of leave. The long wait for the Family Medical Leave Act has not been a waste. Since the Act s inception, millions of people have benefited from the twelve weeks approved by the Government. The number of employers and employees the Family Medical Leave Act affected went above and beyond the projected numbers, thus showing the increasing need for protection due to a serious health condition of an employee or employee s family. The numbers are projected to only increase in the next five years because of the number of workers that will need to take leave under the Act at some time.

365