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Loophole In Family Leave Act Is Big Enough To Park A Bus

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The Tampa Tribune

Published: February 18, 2008

The Family and Medical Leave Act is a good law that tempts workers to treat employers very badly.

A note from your doctor gives you the right to stay home or leave work with no immediate notice to your boss. In some workplaces, the 1993 law encourages workers to overstate or make up ailments.

A case in point is HARTline, the county's public transit service. Forty-two percent of the bus drivers have signed up for a benefit the federal law calls "unscheduled intermittent leave." Many of them are using the law to extend weekends and go home "sick" to avoid unwanted assignments.

The law designed to cost nothing is costing HARTline and other employers many millions of dollars. The family leave act was intended to cost little or nothing while providing 12 weeks of job security to help workers through challenges times - such as bringing home a new baby, recovering from illness, or helping an incapacitated relative.

The law also anticipated a need to cover problems that arise for a few days or even a few hours. Under the act, a worker undergoing cancer treatments could take intermittent leave as required without risk of getting fired.

Some workers, including many HARTline drivers, have discovered that minor ailments also qualify, such as back pain and headaches. A one-time doctor's certification can give a worker a perpetual excuse for going home early, sleeping late, or not showing up at all.

Reforms are needed. Lawmakers were wrong in thinking that two features would minimize employee abuse and employer expense: One, the worker on leave under the act gets no pay and thus has no incentive to malinger, and two, the law applies only to organizations with 50 or more workers, which seems to be ample manpower to make up lost productivity.

But employers like the bus agency can't make up in the afternoon for a bus that doesn't run in the morning. In many businesses, schedules must be kept.

To keep its buses on time, HARTline is spending $2 million a year on overtime, an agency spokesman says, and 39 percent of that cost is attributed to FMLA absences. That represents an outrageous abuse and unnecessary cost to taxpayers who subsidize the agency.

According to HARTline management, many of the bus drivers are making up their own lost hours with overtime, much of which is made necessary by other drivers out on single-day FMLA leave.

Protections on medical privacy make auditing for abuse difficult.

Anyone gaming the system should be ashamed of themselves. They also need to be smarter in their personal lives. Using up leave entitlement as fast as you earn it defeats the major purpose of the act, which is to provide job security in case of serious accident or major illness.

The Labor Department is considering reforms that would help HARTline keep healthy employees in line. Among the useful improvements would be to require regular renewals of doctor certification and to require that employees give employers reasonable notice whenever they can't work.

Abraham Lincoln was right when he said that "wanting to work is so rare a merit that it should be encouraged." The possibility that the country would one day provide legal cover for folks pretending to be sick would never have occurred to Honest Abe.

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