HART Drivers Use Of FMLA Questioned

TAMPA - Hundreds of times over the past two years, Hillsborough Area Regional Transit Authority bus drivers have called in sick under a federal law originally meant to protect new moms and those with serious illnesses.

The frequency with which the drivers are citing the Family Medical Leave Act has sparked a review by the transit agency amid suggestions that some employees are abusing it to take repeated days off without consequence.

Of the 364 drivers employed by HART, 42 percent have been declared eligible for FMLA sick days. By contrast, neighboring bus systems report 2 percent or 3 percent eligible for time off under the act.

"Either we're hiring a lot of people who are chronically ill or there are people who have learned to address certain inadequacies in the system," HART spokesman Ed Crawford said. "We happen to see it a lot on Mondays and Fridays."

There is a cost to taxpayers and transit users. Absenteeism has risen 35 percent among HART drivers since 2005, and overtime now accounts for about 18 percent of all wages. The agency paid about $2.1 million in overtime last year, but bus routes still occasionally go uncovered.

To get a handle on the problem, HART has hired a compliance officer to double-check filings and weed out bogus claims.

Businesses and some government agencies have long complained that the act, while well-intentioned, is too easy to abuse.

Ryan Barack, an employment law lawyer based in Tampa, said among some employers the FMLA is derisively called the Friday and Monday Leave Act.

"Conceivably, if you get a note from your doctor you can take off every Friday because you can take up to 12 weeks a year," he said.

Recipe For Abuse?

The act was passed in 1993, initially to safeguard the jobs of new moms or those with serious medical problems. A provision of the act also gives workers up to 12 weeks a year of continuous or "intermittent" unpaid leave to deal with chronic ailments.

Once diagnosed by a physician and declared eligible for FMLA leave, those workers can call in sick with as little as an hour's notice.

The act was passed to help employees deal with family medical emergencies, but a provision gives workers time off for things such as back pain, migraine headaches, stress and medical problems involving family members.

Although the act guarantees only unpaid leave, workers can be paid for some of the time if they count the days against their sick or vacation time. Abuse happens if workers not really suffering from a flare-up of a chronic illness use their eligibility to take off more days than they have sick and vacation time.

The act also protects employees from being fired for excessive absenteeism.

The act has many supporters, who say it's needed to protect the jobs of workers dealing with everything from pregnancy to cancer to caring for a critically ill parent. Criticism has mostly centered on its potential for abuse.

Recently, a coalition of business groups urged the U.S. Labor Department to narrow the definition of serious health conditions because it thought many workers were missing work for minor illnesses.

"Even though there are legitimate uses, the system right now is so loose that it's very easy for those employees who want to use it in a way that is not intended," said Marc Freedman, director of labor law policy at the U.S. Chamber of Commerce in Washington.

The chamber and other groups are urging the department to tighten regulations concerning intermittent leave. In addition to days off, some workers have used the act to excuse tardiness, and employers have little recourse to challenge them.

Not Used As Often Elsewhere

On one hand, employers want to respect the medical needs and privacy of their workers, but on the other they have businesses to run.

"It's a real problem for employers, both because of the sporadic effect on the work place and the difficulty employees can have with it," said Tampa lawyer Matthew Fenton, who has represented employees and employers in family and medical leave matters.

In HART's case, the number of claims "does seem like a high number," he said.

In 2005, the agency's bus operators cited the act in a third of absences. Last year they cited the act in 40 percent of absences.

That number is far lower at some other bus companies.

Only 3.5 percent of the Pinellas Suncoast Transit Authority's 397 drivers are FMLA eligible. At Orlando's transit agency, less than 2 percent are on the list.

Privacy records shield the names of drivers using the act, and what medical ailments they are citing.

The issue isn't just a financial burden at HART. On some occasions, the agency has been forced to sideline buses for lack of drivers. That happens on routes with multiple buses, but still causes delays.

In other instances, HART has coped by pulling supervisors from their jobs checking routes and stops to put them behind the wheel, Crawford said.

"You're down to using a person who is in a position qualified to do that job, but not in a position to do their regular job because they're driving a bus," he said.

Under the agreement with HART's drivers union, the amount of sick time varies from five days yearly for new employees to three weeks or more for veteran workers.

The number of FMLA claims hasn't gone unnoticed in water-cooler discussions at the 693-employee agency, where drivers say overtime shifts are aplenty because so many workers are calling in sick.

Causing Friction Among Drivers

Bus driver Jim Chapman said he's taken family leave twice, when his daughter was ill and when his previous wife was ill, but that it now seems drivers are calling in on a regular basis, especially on Mondays and Fridays. That sometimes causes friction with longtime drivers, he said.

"Some of the drivers they're hiring now, they just don't want to work," said Chapman, who's been driving for HART for more than 20 years.

"The biggest thing is I think the majority of people come to work and come on time, and they should be entitled to better wages and benefits," he said, "but all this extra money that's being burned up to cover this overtime is taking away from those operators who want work and want a decent wage."

Local 1593 of the Amalgamated Transit Workers Union, which represents the drivers, does not deny that many members are calling in sick and citing the act, but it says that's happening only because HART has too few operators and too many routes to cover.

Union president Mike McCoy said HART has avoided hiring operators to save money and that has resulted in drivers becoming stressed and overworked, causing health issues.

"When they're putting out schedules that are overbearing ... it's going to cause health problems," he said.

HART is trying to cope by hiring more drivers. About 30 drivers are in training and are expected to start work in the next month or two.

The agency also plans service changes in March that will eliminate some overtime by creating more "straight runs" in which operators work their shifts without interruption. That could cut the number of drivers between shifts vying for extra runs to build up overtime, Crawford said.

By making these changes, the agency is hoping to save $750,000 in overtime. That's 35 percent of the more than $2 million HART has paid in overtime in each of the past three years. A presentation about the issue to HART's board of directors is set for March 5.

"By rejiggering the runs and making more bodies available, that should cut it down," Crawford said.